                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 07a0085p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                        X
                                   Plaintiff-Appellee, -
 RICHARD WADE COOEY, II,
                                                         -
                                                         -
                                                         -
                                                             No. 05-4057
            v.
                                                         ,
                                                          >
 TED STRICKLAND, Governor; TERRY J. COLLINS,             -
                                                         -
                              Defendants-Appellants. -
 Director; E. C. VOORHIES, Warden,

                                                         -
                                                        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: December 7, 2006
                                Decided and Filed: March 2, 2007
                Before: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Michael L. Collyer, OFFICE OF THE ATTORNEY GENERAL, Cleveland, Ohio, for
Appellants. Gregory W. Meyers, PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee.
ON BRIEF: Michael L. Collyer, Kelley A. Sweeney, OFFICE OF THE ATTORNEY GENERAL,
Cleveland, Ohio, for Appellants. Gregory W. Meyers, Kelly L. Culshaw, Kimberly S. Rigby,
PUBLIC DEFENDER’S OFFICE, Columbus, Ohio, for Appellee.
     SUHRHEINRICH, J., delivered the opinion of the court, in which SILER, J., joined.
GILMAN, J. (pp. 12-17), delivered a separate dissenting opinion.
                                        _________________
                                            OPINION
                                        _________________
        SUHRHEINRICH, Circuit Judge. Richard Cooey, an Ohio inmate under sentence of death,
filed this action against Ted Strickland, Governor, Terry J. Collins, Director, and E. C. Voorhies,
Warden (collectively “Defendants” or “State”) pursuant to 42 U.S.C. § 1983, challenging the
constitutionality of Ohio’s lethal injection protocol. The issues before us in this interlocutory appeal
are (1) whether a death row inmate’s claim against lethal injection itself–as opposed to a precursor
procedure–is properly considered to be a habeas action or one brought pursuant to 42 U.S.C. § 1983,
(2) whether a death row inmate’s § 1983 method-of-execution challenge accrues, for statute of
limitations purposes, when execution is imminent or at some earlier stage in state and federal

                                                   1
No. 05-4057           Cooey v. Strickland, et al.                                              Page 2


proceedings, and (3) whether res judicata is a bar to a death row inmate’s claim concerning the
means and methods of execution when similar issues were raised, or the specific claim could have
been raised, in a previous habeas action.
                                           I. Background
        In 1986, an Ohio three-judge panel convicted Cooey of two counts of aggravated murder,
and the panel sentenced him to death. The Ohio Supreme Court affirmed Cooey’s convictions and
sentence on direct appeal. See State v. Cooey, 544 N.E.2d 895 (Ohio 1989), and the United States
Supreme Court denied certiorari on April 1, 1991, see Cooey v. Ohio, 499 U.S. 954 (1991). Cooey
unsuccessfully sought post-conviction relief pursuant to Ohio Rev. Code Ann. § 2953.21. See State
v. Cooey, 1994 WL 201009 (Ohio Ct. App. May 25, 1994). The Ohio Supreme Court declined
jurisdiction over his further appeal from this decision. Cooey subsequently sought to reopen his
direct appeal on the basis of ineffective assistance of appellate counsel. The Ohio Court of Appeals
denied his request to reopen on the basis of procedural default because Cooey had not established
good cause for not filing his application to reopen within ninety days of the July 1, 1993, effective
date of Ohio App. R. 26(B). The Ohio Supreme Court affirmed. See State v. Cooey, 653 N.E.2d
252 (Ohio 1995).
        In October 1996, Cooey filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254.
The district court denied the petition on September 4, 1997. See Cooey v. Anderson, 988 F. Supp.
1066 (N.D. Ohio 1997). This Court granted a certificate of appealability as to two issues and denied
relief as to both. See Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002). The United States Supreme
Court denied certiorari on March 31, 2003. Ohio originally set Cooey’s execution date for July 24,
2003.
        On July 21, 2003, Cooey filed a motion for relief from judgment pursuant to Fed. R. Civ. P.
60(b) and a motion for stay of execution. On July 23, 2003, the district court granted Cooey’s
motion for a stay of execution and deferred ruling on the Rule 60(b) motion. Both the Sixth Circuit
and the Supreme Court denied the Warden’s motions to vacate the stay of execution. The district
court ultimately denied the Rule 60(b) motion, and this Court denied Cooey’s application for a
certificate of appealability from the denial of his Rule 60(b) motion and his motion for leave to file
a second or successive habeas petition.
        On June 10, 2004, Cooey and another inmate, Adremy Dennis, filed a complaint alleging that
the lethal injection protocol constitutes cruel and unusual punishment in violation of the Eighth
Amendment. Ohio utilizes three drugs in performing lethal injection: sodium thiopental,
pancurionium bromide, and potassium chloride. The sodium thiopental is designed to anesthetize
the prisoner and render him unconscious. Next, the pancuronium bromide paralyzes all of the
prisoner’s voluntary muscles but does not affect his sensation, consciousness, or ability to feel pain.
Finally, the potassium chloride induces cardiac arrest. Dennis and Cooey asserted that if the sodium
thiopental is not administered properly and in sufficient dosage, the prisoner could experience
intense pain after being injected with the potassium chloride, but would be unable to convey the
sensation due to the paralyzing agent in pancuronium bromide. They also maintained that to subject
the prisoner to such excruciating pain while he is still conscious would amount to cruel and unusual
punishment. They also alleged that the personnel attending to the executions are inadequately
trained and, as such, Defendants’ execution methods would violate a prisoner’s constitutional rights.
No. 05-4057               Cooey v. Strickland, et al.                                                         Page 3


        The district court dismissed the complaint because Cooey failed to exhaust his administrative
remedies. After exhausting them, Cooey re-filed his complaint on December 8, 2004.1 On January
4, 2005, Defendants moved to dismiss the complaint based on the statute of limitations and res
judicata, in addition to arguing that Cooey’s complaint should be construed as a successive habeas
petition. On March 28, 2005, the district court denied the defendants’ motion but granted them
permission to pursue this interlocutory appeal. On March 30, 2005, Defendants asked the district
court to certify for immediate appeal the three arguments made in their motion to dismiss. On April
13, 2005, the district court granted the motion, in part, as to the issue of whether Cooey’s claims are
barred by the statute of limitations. Defendants then sought permission to appeal the three issues
pursuant to 28 U.S.C. § 1292(b). This Court granted the request as to all three issues.
        We later granted a stay pending the Supreme Court’s decision in Hill v. McDonough, 126
S. Ct. 2096 (2006), which was decided on June 12, 2006. After that decision, the parties filed
supplemental briefs addressing its impact on this case. The parties also submitted second
supplemental briefs discussing the impact of recent changes in Ohio’s lethal injection protocol on
the issues pending before this Court. The matter was argued before this Court on December 7, 2006.
                                                    II. Analysis
         This Court reviews de novo the district court’s grant or denial of a motion to dismiss under
Fed. R. Civ. P. 12(b)(6). Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005), cert. denied, 126 S.
Ct. 1911 (2006). In this analysis, we must construe the complaint in the light most favorable to the
plaintiff, accept all of his factual allegations, and determine whether he undoubtedly can prove no
set of facts in support of his claims that would entitle him to relief. Columbia Natural Res., Inc. v.
Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995).
                                              A. § 1983 vs. § 2254
        Cooey sought relief pursuant to 42 U.S.C. § 1983, alleging that the proposed lethal injection
protocol would constitute cruel and unusual punishment in violation of the Eighth Amendment. In
their motion to dismiss, Defendants argued that Cooey’s claim should have been presented in a
petition for a writ of habeas corpus under 28 U.S.C. § 2254, rather than as a § 1983 claim. In Hill,
the Supreme Court addressed this same issue and concluded that a death penalty plaintiff could raise
his challenge in a § 1983 action. Relying on its earlier decision in Nelson v. Campbell, 541 U.S.
637, 645-47 (2004), the Court concluded that the plaintiff’s action was properly brought under
§ 1983 because it did not present a general challenge to his execution by lethal injection, but rather
limited the challenge to the specific protocol currently used by the defendants. Hill, 126 S.Ct. at
2101-02. In their supplemental brief, Defendants acknowledge that Hill defeats their argument.
                                                  B. Timeliness
         Defendants also argue that Cooey’s § 1983 action is barred by the statute of limitations. The
Supreme Court has held that § 1983 claims are best characterized as tort actions for the recovery of
damages for personal injury and that federal courts must borrow the statute of limitations governing
personal injury actions from the state where the § 1983 action was brought. Wilson v. Garcia, 471
U.S. 261, 275-76 (1985). If a state has more than one statute of limitations for personal injuries, the
state’s residual or general statute of limitations governing personal injury actions is applied to all
§ 1983 actions brought in that state. Owens v. Okure, 488 U.S. 235, 249-50 (1989). This Court has
held that a two-year statute of limitations applies to § 1983 claims in Ohio. Banks v. City of

         1
           Dennis re-filed his complaint on September 27, 2004. Cooey did not join in this filing. Dennis also re-filed
his request for a preliminary injunction, which the district court denied on September 29, 2004. This Court upheld the
denial of the injunction and Dennis was subsequently executed.
No. 05-4057                  Cooey v. Strickland, et al.                                                       Page 4


Whitehall, 344 F.3d 550, 553 (6th Cir. 2003) (citing Browning v. Pendleton, 869 F.2d 989 (6th Cir.
1989) (en banc)).
        On the other hand, as the Supreme Court recently made clear, federal law determines when
the statute of limitations for a civil rights action begins to run. Wallace v. Kato, – S. Ct. –, No. 05-
1240, 2007 WL 517122, at *3 (Feb. 21, 2007). “Under those principles, it is ‘the standard rule that
[accrual occurs] when the plaintiff has complete and present cause of action.’” Wallace, 2007 WL
517122, at *3 (quoting Bay Area Laundry & Dry Cleaning Pension Trust Fund v. Ferbar Corp. of
Cal, 522 U.S. 192, 201 (1997)). This occurs “when ‘the plaintiff can file suit and obtain relief.’”
Id. (quoting Bay Area Laundry, 522 U.S. at 201).
        This Court has previously stated that “[u]nder federal law, as developed in this Circuit, the
statute of limitations period begins to run when the plaintiff knows or has reason to know that the
act providing the basis of his or her injury has occurred.” (6th Cir. 2001); Collyer v. Darling, 98
F.3d 211, 220 (6th Cir. 1996); Ruff v. Runyon, 258 F.3d 498, 500-01 (6th Cir. 2001) (same); Sevier
v. Turner, 742 F.2d 262, 273 (6th Cir. 1984). Stated differently, “[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 v. City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003).
We must therefore look at when the harm in question occurred, guided by the principle that “[a]
plaintiff has reason to know of his injury when he should have discovered it through the exercise
of reasonable diligence.” Sevier, 742 F.2d at 273.
         Defendants have the burden of demonstrating that the statutory period had run before Cooey
filed his action. Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). We review de novo the district
court’s conclusion that Cooey’s complaint was filed within the applicable statutory period. Kelly
v. Burks, 415 F.3d 558, 560 (6th Cir. 2005).
        Cooey was sentenced to death in 1986. His conviction and sentence were affirmed by the
Ohio Supreme Court on direct appeal in 1989, and the United States Supreme Court affirmed in
1991. Lethal injection became available2 as a means of execution in Ohio in 1993. In 2001, it
became Ohio’s sole method of execution. This Court denied federal habeas relief in 2002, and the
United States Supreme Court denied certiorari on March 31, 2003. Cooey’s execution date was set
for July 24, 2003.
       The record also reflects that, at least as early as April 2002, information about the protocol
was available upon request. Attached to Cooey’s complaint is a letter dated3 April 19, 2002, from
Warden Haviland disclosing the chemical mixture and equipment to be used. See also Deborah W.

         2
           In 1993, a bill was passed into law granting prisoners the option to choose between death by electrocution or
lethal injection, with electrocution as the “default” method. See Ohio Rev. Code § 2949.22(A)-(B) (2000). In 2001,
Ohio made lethal injection the sole method of execution. See Ohio Rev. Code § 2949.22(A) (amending Ohio Rev. Code
Ann. § 2949.22(A) (West 2000)).
         3
             The letter states in relevant part:
                     The intravenous equipment was purchased from a commercial source and consisted
                     of:
                     01). Angiocath Abbocath-7
                     02). Primary IV Set No. 1820 (70 inch)
                     03). 0.9%(?) Sodium Chloride, 1000m.
                     The generic names of the pharmaceuticals used are:
No. 05-4057               Cooey v. Strickland, et al.                                                           Page 5


Denno, When Legislatures Delegate Death: The Troubling Paradox Behind State Uses of
Electrocution and Lethal Injection and What it Says About Us, 63 Ohio St. L.J. 63, 146 (2002)
(explaining that as of 2001, Ohio had a vague written policy, but that more specific information was
available upon request); Mary Beth Lane, “How State Plans to Kill Berry; Execution to Take About
Six Minutes” Cleveland Plain Dealer (February 17, 1999) (describing the three drugs in the lethal
injection protocol, which a nine-page DRC policy and state officials explained). A follow-up letter
from staff counsel for the Ohio Department of Rehabilitation and Correction dated May 30, 2002,
further describes the procedures used 4by prison personnel in performing lethal injection and the
quantities used under this formulation.
         The district court concluded that Cooey’s claim accrued when his execution became
imminent and he knew or had reason to know of the facts that gave rise to his specific method-of-
execution challenge. In defining when an execution becomes imminent, the district court stated that
it was “of the view that an execution becomes imminent not necessarily when an execution date is
set, but when all other legal challenges to the validity of a death sentence come to an end, i.e., when
the plaintiff has exhausted all of his state and federal avenues of relief.” This occurs “when the
United States Supreme Court denies certiorari in the plaintiff’s habeas corpus proceeding or
otherwise issues a decision foreclosing federal habeas corpus relief.” In determining when a
plaintiff knows or has reason to know the facts giving rise to his specific method-of-execution claim,
the district court stated that because Ohio’s protocol is a creation of the Ohio Department of
Rehabilitation and Correction, and therefore subject to change until the time of execution,
       requiring a death-sentenced plaintiff to file his method-of-execution challenge any
       sooner . . . [would be] wasteful and possibly absurd, given the possibility that, prior
       to his execution becoming imminent, a plaintiff could see his conviction or death
       sentence reversed, or the alteration of the precise execution protocol that plaintiff
       might seek to challenge as unconstitutional.
      Applying this test to Cooey, the district court concluded that “Cooey knew or had reason to
know of the facts giving rise to the specific allegations he has presented in the instant complaint in


                  01). Pancuronium Bromide
                  02). Potassium Chloride
                  03). Thiopental Sodium
       There is no cardiac monitoring equipment used other than a stethoscope.
       4
           The May 30, 2002 letter from the Ohio Department of Rehabilitation and Correction provides in pertinent part:
                The execution team begins rehearsing the procedure thirty days from the execution date. On
       the day of the execution, saline locks are placed in each of the prisoner’s arms prior to entering the
       death chamber. After the prisoner has been placed on the execution bed, tubing for the delivery of the
       chemicals is attached to each lock. The chemicals are administered via hand infusion. Persons
       performing these functions have been certified as either a licensed practical nurse, paramedic or
       phlebotomy technician. The chemicals are infused into one arm. If the arm becomes unavailable, the
       other arm would be used. A Medical Doctor has pronounced death.
                The drugs are administered in the following dosages: two grams of thiopental sodium in
       normal saline concentration; one hundred milligrams of pancuronium bromide in normal saline
       concentration; and 100 milliequivalents of potassium chloride in normal saline concentration. The
       thiopental sodium and pancuronium bromide are purchased from a local pharmacy. The institution
       pharmacy purchases the drugs. It turns the drugs over to the Warden and keeps a record of receipt and
       usage. Purchase and record keeping procedures have been coordinated with the Drug Enforcement
       Agency and the Ohio State Board of Pharmacy.
No. 05-4057               Cooey v. Strickland, et al.                                                             Page 6


May 2002” when he received information about the protocol, and that his execution became
imminent when the United States Supreme Court denied certiorari as to his habeas corpus
proceedings on March 31, 2003; “[thus, Cooey] had two years from that date to file his method-of-
execution claim.” Because Cooey filed the instant action on December 8, 2004, three months before
the expiration of the statute of limitations, the district court deemed his cause of action was timely.
       The district court also commented that, as the protocol was not established by statute or
administrative rule, it was subject to change at any time before the execution. Because Defendants
could change the protocol up to the time of an inmate’s execution, the district court believed that it
would be premature to challenge the protocol until the execution was imminent.
        On appeal, Defendants argue that the statute of limitations began to run in 1993, when lethal
injection became available as a means of execution in Ohio, or alternatively in 2001, when lethal
injection became Ohio’s sole method of execution. Defendants assert that it is the issuance of a
government order, in this case the protocol, rather than the carrying out of that order, which starts
the clock. Cooey urges us to affirm the district court’s conclusion that his claim accrued on March
31, 2003, when the United States Supreme Court denied certiorari as to Cooey’s first habeas petition
and after his execution date was set.
       Setting an accrual date at the point when the actual harm is inflicted, i.e., at the point of
execution, is problematic in this context because the death-sentenced inmate’s claim would not
accrue until he was executed, at which time it would also be simultaneously moot. In any event,
both Nelson and Hill establish inferentially that § 1983 method-of-execution challenges may be
brought before the execution is carried out. Neither case, however, addressed the appropriate
accrual date. Thus, the relevant “event that should have alerted a lay person to protect his rights”
must be redefined here.
        If the point of infliction is not a viable option, the most logical choice of a triggering event
is the point when the death penalty is ordered, upon judgment of conviction and sentence. At least
one Court has set the accrual date at the conclusion of direct review by the state. See Neville v.
Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (per curiam) (holding, in reliance on a concession by
the state, that a challenge to a method of execution        may be filed any time after the plaintiff’s
conviction has become final on direct review).5 This is also an attractive choice because it marks
the point at which the state has rendered its criminal judgment final and, absent collateral civil
proceedings, the point at which the state sets the execution date. Furthermore, the death-sentenced
inmate can file suit and obtain relief.
         The district court’s conclusion that the accrual date occurs when execution is imminent and
all state and federal remedies have been exhausted is problematic for several reasons. First, it
subverts the purpose of statutes of limitations, which are designed to “promote judicial economy
and protect defendants’ rights.” John Hancock Fin. Servs., Inc. v. Old Kent Bank, 346 F.3d 727, 734
(6th Cir. 2003) (and also noting that the discovery rule “has been applied to prevent unjust results
when a plaintiff would otherwise be denied a reasonable opportunity to bring suit due to the latent
nature of the injury or the inability to discover the causal connection between the injury and the
defendant’s action” (internal quotation marks omitted)). As the Supreme Court noted in Wallace:



         5
           Neville cites White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005) (per curiam), as support for this proposition.
However, the reference to White is merely a concession by the state that when an inmate’s conviction became final on
direct review, his challenge to the method of execution would have been appropriately filed at any time thereafter. See
White, 429 F.3d at 574 (“The State concedes that when Harris’s conviction became final on direct review, his challenge
to the State’s method of execution, in the absence of dramatic changes to the State’s protocol–would have been
appropriately filed at any time thereafter and need not await an imminent execution date.”).
No. 05-4057           Cooey v. Strickland, et al.                                                Page 7


       “Under the traditional rule of accrual ... the tort cause of action accrues, and the
       statute of limitations commences to run, when the wrongful act or omission results
       in damages. The cause of action accrues even though the full extent of the injury is
       not then known or predictable.” 1 C. Corman, Limitation of Actions § 7.4.1, pp.
       526-527 (1991) (footnotes omitted); see also 54 C.J.S., Limitations of Actions § 112,
       p. 150 (2005). Were it otherwise, the statute would begin to run only after a plaintiff
       became satisfied that he had been harmed enough, placing the supposed statute of
       repose in the sole hands of the party seeking relief.
Wallace, 2007 WL 517122, at *4.
        More fundamentally, setting an accrual date at the point of imminency plus exhaustion of
federal collateral remedies adds a significant period of delay to a state’s ability to exercise its
sovereign power and to finalize its judgments, which disrupts the vital yet delicate balance between
state and federal relations. “Our federal system recognizes the independent power of a State to
articulate societal norms through criminal law; but the power of a State to pass laws means little if
the State cannot enforce them.” McCleskey v. Zant, 499 U.S. 467, 492 (1991). Furthermore, “a
State retains a significant interest in meting out a sentence of death in a timely fashion.” Nelson, 541
U.S. at 644.
        Of course, “[f]ederal habeas review of state convictions frustrates both the States’ sovereign
power to punish offenders and their good faith-attempts to honor constitutional rights.” Calderon
v. Thompson, 523 U.S. 538, 555-56 (1998) (internal quotation marks omitted). For this reason,
federal habeas review of state court judgments is limited. As the Supreme Court observed in
Calderon:
                In light of “the profound societal costs that attend the exercise of habeas
       jurisdiction,” Smith v. Murray, 477 U.S. 527, 539 . . . (1986), we have found it
       necessary to impose significant limits on the discretion of federal courts to grant
       habeas relief. See, e.g., McClesky v. Zant, 499 U.S. 467, 487 . . . (1991) (limiting “a
       district court’s discretion to entertain abusive petitions”); Wainwright v. Sykes, 433
       U.S. 72, 90-91 . . . (1977) (limiting courts’ discretion to entertain procedurally
       defaulted claims); Teague v. Lane, 489 U.S. 288, . . . 308-10 (1989) (plurality
       opinion of O’CONNOR, J.) (limiting courts’ discretion to give retroactive
       application to “new rules” in habeas cases); Brecht v. Abrahamson, 507 U.S. 619,
       637-38 . . . (1993) (limiting courts’ discretion to grant habeas relief on the basis of
       “trial error”).
Id. at 554-55. The Court added that “[t]hese limits reflect our enduring respect for “the State’s
interest in the finality of convictions that have survived direct review within the state court system.”
 Id. at 555 (citation omitted).
        The Antiterrrorism and Effective Death Penalty Act of 1996 reflects Congress’s desire to
restore and maintain the proper balance between state criminal adjudications and federal collateral
proceedings. See generally Rhines v. Weber, 544 U.S. 269, 274 (2005) (stating that “[t]he enactment
of AEDPA in 1996 dramatically altered the landscape for federal habeas corpus petitions”).
       There is no doubt Congress intended AEDPA [the Antiterrorism and Effective Death
       Penalty Act of 1996] to advance [the] doctrines [of comity, finality, and federalism].
       Federal habeas corpus principles must inform and shape the historic and still vital
       relation of mutual respect and common purpose existing between the States and the
       federal courts. In keeping this delicate balance we have been careful to limit the
No. 05-4057           Cooey v. Strickland, et al.                                               Page 8


       scope of federal intrusion into state criminal adjudications and to safeguard the
       States’ interest in the integrity of their criminal and collateral proceedings.
Williams v. Taylor, 529 U.S. 420, 436 (2000); see also Woodford v. Garceau, 538 U.S. 202, 206
(2003) (“Congress enacted AEDPA to reduce delays in the execution of state and federal criminal
sentences, particularly in capital cases, . . . and to further the principles of comity, finality, and
federalism.”(internal quotes omitted)); Williams v. Taylor, 529 U.S. 362, 386 (2000) (Stevens, J.,)
(stating that “Congress wished to curb delays, to prevent ‘retrials’ on federal habeas, and to give
effect to state convictions to the extent possible under law”); see also id. at 404 (majority opinion).
In addition to revising the standards for evaluating the merits of a habeas application, see 28 U.S.C.
§ 2254(d) (1996) (providing that a writ of habeas corpus shall not be granted to a state prisoner
unless the state court proceedings “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,” or “resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the State
court proceedings”), the AEDPA created a one-year statute of limitations for filing a federal habeas
petition, running from “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A) (1996).
See generally Day v. McDonough, 126 S. Ct. 1675, 1680 n.1 (2006) (noting that “[u]ntil AEDPA
took effect in 1996, no statute of limitations applied to habeas petitions”). The one-year limitation
period “quite plainly serves the well-recognized interest in the finality of state court judgments . . .
[and] reduces the potential for delay on the road to finality by restricting the time that a prospective
federal habeas petitioner has in which to seek federal habeas review.” Duncan v. Walker, 533 U.S.
167, 179 (2001) (internal citation omitted); see also Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir.
2000) (“The AEDPA statute of limitation promotes judicial efficiency and conservation of judicial
resources, safeguards the accuracy of state court judgments by requiring resolution of constitutional
questions while the record is fresh, and lends finality to state court judgments within a reasonable
time.” (quoted with approval in Day v. McDonough)).
        The concerns articulated by the Supreme Court both pre- and post-AEDPA, and by Congress
in the AEDPA itself, apply with equal force in this case, which “fall[s] at the margins of habeas.”
Nelson, 541 U.S. at 646 (noting that the method-of-injection challenges “fall at the margins of
habeas”). Indeed, the Court’s recent decisions in Hill and Nelson reflect this core concern that
federal habeas should not displace a state’s authority to execute its judgments. In Nelson, the
Supreme Court stated that “method-of execution” challenges should be “brought at such a time as
to allow consideration of the merits, without requiring the entry of a stay.” 541 U.S. at 650; see
also Gomez v. U. S. Dist. Court, 503 U.S. 653, 654 (1992) (criticizing inmate for filing “method-of-
execution” challenge pursuant to 42 U.S.C. § 1983 more than a decade after the completion of his
direct appeal, and shortly before his execution); White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005)
(per curiam) (rejecting an inmate’s § 1983 “method-of-execution” challenge where the inmate had
“been on death row for more than six years”). Most recently, in Hill, the Supreme Court
emphasized that filing a § 1983 action challenging the constitutionality of certain aspects of a state’s
execution does not “entitle the complainant to an order staying [his] execution as a matter of
course.” Hill, 126 S. Ct. at 2104. The Court added that “[b]oth the State and the victims of [the]
crime have an important interest in the timely enforcement of [the] sentence.” Id. Thus, an inmate
intending to assert such a challenge generally must file his suit in sufficient time to “allow
consideration of the merits, without requiring entry of a stay” of execution. Id. (quoting Nelson, 541
U.S. at 650). The Nelson Court also stated “flat out” that “[t]he federal courts can and should
protect States from dilatory or speculative suits.” Rutherford v. McDonough, 466 F.3d 970, 974
(11th Cir. 2006) (quoting Hill, 126 S.Ct. at 2104). This Court adheres to these principles. See, e.g.,
Hicks v. Taft, 431 F.3d 916 (6th Cir. 2005) (pre-Hill, cited with approval in Hill; ruling that a last-
minute petition by a death row inmate, filed six days before his scheduled execution, was not
entitled to a stay of execution even though the district court had allowed him to intervene if a fellow
No. 05-4057               Cooey v. Strickland, et al.                                                          Page 9


inmate’s § 1983 challenge to Ohio’s lethal injection protocol); Alley v. Little, 186 Fed. App’x 604,
(6th Cir.), reh’g en banc denied, 452 F.3d 621 (6th Cir.), cert. denied, 126 S. Ct. 2975 (2006).
        Thus, since the “date” the lethal injection protocol is imposed is infeasible, it stands to reason
that the next most appropriate accrual date should mirror that found in the AEDPA: upon
conclusion of direct review in the state  court or the expiration of time for seeking such review. See
28 U.S.C. § 2244(d)(1)(A) (1996).6 All of the same concerns articulated by the Supreme Court and
as reflected in the AEDPA are relevant here. Like federal habeas actions, a § 1983 method-of-
execution challenge “implicates values beyond the concerns of the parties.” See Acosta, 221 F.3d
at 123 (and noting that the AEDPA statute of limitation was Congress’ primary vehicle for
streamlining the habeas review process and lending finality to state convictions).
       Thus, under this standard, Cooey’s claim would have accrued in 1991, after the United States
Supreme Court denied direct review. However, Ohio did not adopt lethal injection until 1993, or
make it the exclusive method of execution until 2001, so the accrual date must be adjusted because
Cooey obviously could not have discovered the “injury” until one of those two dates. We need not
pinpoint the accrual date in this case, however, because even under the later date, 2001, Cooey’s
claim exceeds the two-year statute of limitations deadline because his claim was not filed until
December 8, 2004.
       Cooey asserts, and the district court found, that Cooey did not have actual knowledge of
Ohio’s protocol until May 2002 when he received responses to his inquiries from the Warden.
Actual knowledge, however, is not the appropriate measure; the test is whether he knew or should
have known based upon reasonable inquiry, and could have filed suit and obtained relief. Cooey
should have known of his cause of action in 2001 after amendments to the law required that he be
executed by lethal injection, and the information was publicly available upon request. Yet, even if
we accepted (and we would not) May 2002, the date when he received the Warden’s response,
Cooey’s complaint is still untimely.
         Cooey also argues that the statute of limitations did not begin to run until the Nelson decision
made a § 1983 action a possible remedy for Cooey. Prior to that 2004 decision, this Court precluded
a death row inmate from filing a § 1983 action challenging his method of execution. See In re Sapp,
118 F.3d 460, 464 (6th Cir. 1997); In re Williams, 359 F.3d 811 (6th Cir. 2004). Indeed, in
Williams, the plaintiff attempted to bring a § 1983 action raising the same argument now presented
by Cooey, and this Court concluded that the claim must be raised in a § 2254 habeas action.
Nonetheless,“the plaintiff in Nelson was similarly barred by circuit precedent at the time he filed his
suit. So long as there remains the possibility of en banc reconsideration and Supreme Court review,
circuit law does not completely foreclose all avenues for relief.” Harris v. Johnson, 376 F.3d 414,
418-19 (5th Cir. 2004). This Circuit’s precedent did not prevent Lewis Williams and John Roe 7from
filing their lethal injection § 1983 actions. See In re Williams, 359 F.3d 811 (6th Cir. 2004).


         6
          Direct review of conviction includes review by the United States Supreme Court. Bell v. Maryland, 378 U.S.
226, 232 (1964). The one-year statute of limitations for habeas review under AEDPA does not begin to run until the
ninety-day time period for direct review in the United States Supreme Court has expired. Bronaugh v. Ohio, 235 F.3d
280, 283 (6th Cir. 2000); Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000).
         7
           The Sixth Circuit decided in In re Williams on January 12, 2004. The petitioner in that case, whose claim is
identical to Cooey’s, based his request for a stay of execution on the Supreme Court having granted certiorari in Nelson
v. Campbell, 541 U.S. 637 (2003). The majority decided that it would continue to adhere to Sixth Circuit precedent,
namely In re Sapp, 118 F.3d 460, 464 (6th Cir. 1997). At the same time, while the majority affirmed the district court’s
decision construing the § 1983 action as a successive habeas corpus action and transferring it to this Court for
authorization, it was by a slim margin. See Williams, 359 F.3d at 814-17 (one judge concurring on different grounds,
one judge dissenting, and a close split among the judges in denying the petition for en banc review).
No. 05-4057           Cooey v. Strickland, et al.                                             Page 10


        Lastly, Cooey argues, and the district court found, that the fluid nature of Ohio’s execution
protocol requires imminency of execution to be a key factor in the accrual calculus, citing Stewart
v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998). We recently rejected a similar argument in
Alley. In Alley, a Tennessee inmate also argued that his § 1983 claim challenging Tennessee’s lethal
injection protocol was not ripe until an execution date was imminent. In rejecting this argument we
stated:
        Alley’s brief cites Stewart v. Martinez-Villareal, 523 U.S. 637 . . . (1998) as
        prohibiting courts from considering challenges such as the one in our case before a
        petitioner’s execution reaches imminence. We reject this reading of this precedent.
        In that case, unlike in ours, the defendant’s claim under Ford v. Wainwright, 477
        U.S. 399 . . . (1986), had originally been dismissed without prejudice. The Supreme
        Court’s ruling merely allowed the claim to proceed in a habeas petition at a later
        date. The Court noted that the lower courts had specifically left open the possibility
        that the defendant’s Ford claim could proceed in a future filing. Id. at 640 . . . . No
        such procedural history informs the posture of the § 1983 claim in our case.
        Moreover, we note that claims involving mental competency are inherently different
        from the § 1983 petition before us in at least one respect: mental competency is
        subject to variance over time. It is indeed possible that last-minute first-instance
        Ford petitions could be justified by a change in a defendant’s mental health.
Id. at 607.
       In contrast, while the lethal injection protocol in this case is subject to change, there was no
evidence, until recently, that the protocol had ever been changed. And, furthermore, the recent
changes do not relate to Cooey’s core complaints.
        During the pendency of this appeal, indeed while the matter was stayed, Cooey moved to
expand supplemental briefing or to remand to the district court to further address Ohio’s recent
changes in its execution protocol, which he claimed is consistent with his claim that the malleable
nature of Ohio’s lethal injection protocol means that a § 1983 action cannot be imminent until close
to the date of execution. In support, Cooey attached a memo written by Ohio Department of
Rehabilitation and Correction Director Terry Collins, dated June 27, 2006. In that memo Collins
adopted five “recommendations and process changes” regarding Ohio’s execution protocol.
        Ohio’s recent amendments to its lethal injection protocol resulted from difficulties
encountered during the execution of Joseph Clark on May 2, 2006. When preparing Clark for
execution, prison officials could find only one accessible vein in Clark’s arms to establish a heparin
lock, through which the lethal drugs are administered. (Two locks usually are inserted.) However,
once the execution began and the drugs were being administered, this vein collapsed, and Clark
repeatedly advised officials that the process was not working. Officials stopped the lethal injection
procedure, and after a significant period of time, were able to establish a new intravenous site. The
process then was restarted, and Clark was executed.
        To avoid similar difficulties in future executions, Ohio made several changes to its lethal
injection protocol. 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.
No. 05-4057           Cooey v. Strickland, et al.                                            Page 11


       As Defendants assert, none of these changes relates to Cooey’s core complaints. Further,
none of these areas were implicated as a basis for Cooey’s expert’s conclusion that the process
presents a risk that Cooey will experience pain. Rather, Dr. Heath, Cooey’s expert, criticized the
use of pancuronium bromide, the use and dosage of sodium thiopental, the failure to provide a
continuous dose of an ultra-short-acting barbiturate, and the lack of information regarding prison
personnel’s training to prepare and administer the drugs. Cooey cannot prevail on this basis either.
       In sum, we hold that the district court erred in ruling that the statute of limitations had not
run on Cooey’s method-of-execution claim because it used an improper test for establishing the
accrual date for § 1983 method-of-injection challenges.
                                          C. Res Judicata
        Because we conclude that Cooey’s claim fails on limitations grounds, we need not address
the State’s res judicata argument.
                                          III. Conclusion
      For the foregoing reasons, we REMAND this matter to the district court with instructions
to DISMISS Cooey’s § 1983 complaint with prejudice as barred by the statute of limitations.
No. 05-4057            Cooey v. Strickland, et al.                                               Page 12


                                          _______________
                                             DISSENT
                                          _______________
         RONALD LEE GILMAN, Circuit Judge, dissenting. The majority sets forth two rationales
for its conclusion that the two-year statute of limitations on Cooey’s 42 U.S.C. § 1983 claim accrued
at the end of the direct review of his conviction and sentence by the Ohio Supreme Court. First, the
majority expresses concern that the district court’s accrual date—at the point when the inmate’s
execution is imminent and all state and federal remedies, including postconviction proceedings, have
been exhausted,—“subverts the purpose of statutes of limitations, which are designed to promote
judicial economy and protect defendants’ rights.” (Maj. Op. at 6) (citation and quotation marks
omitted). The majority’s other rationale is that the district court’s accrual date “adds a significant
period of delay to a state’s ability to exercise its sovereign power and to finalize its judgments,
which disrupts the vital yet delicate balance between state and federal relations.” (Maj. Op. at 7).
In essence, however, I believe that these two reasons boil down to the single assertion that the
habeas process “takes too long.” I find this rationale disturbing for the following reasons:
A.      Justice and judicial efficiency
        Timeliness is important, but justice is more important. Although the common saying is that
“justice delayed is justice denied,” there are situations in which the adage does not hold true. I
believe that this is one of those situations. Judges in criminal cases are allowed to apply the “ends
of justice” exclusion to permit certain delays in a criminal prosecution, notwithstanding the
defendant’s right to a speedy trial. 18 U.S.C. § 3161(h)(8)(A); see also United States v. Monger,
879 F.2d 218, 221-22 (6th Cir. 1989) (finding that the magistrate judge properly granted an “ends
of justice” continuance in a complex criminal trial involving a large quantity of wiretap evidence
and multiple coconspirators). I believe that the “ends of justice” principle is equally applicable to
Cooey’s § 1983 challenge.
        Cooey and the intervenors in his complaint allege that the lethal-injection protocol used in
Ohio will violate their Eighth Amendment right to be free of cruel and unusual punishment.
Specifically, they contend that the ultra-short acting anesthetic, thiopental sodium, may fail to induce
unconsciousness and that, as a result, they may be conscious when the paralytic agents, pancuronium
bromide and potassium chloride, are administered. They assert that if that happens, they will likely
suffer excruciating pain from the resulting death by suffocation and a chemically induced heart
attack, but that, because the pancuronium bromide paralyzes their voluntary muscles, they will be
unable to move or speak.
        The interests of justice are great where, as here, the § 1983 claimants challenge only the
method by which their death sentences are carried out, not the validity of their sentences. Ensuring
that executions comply with the Constitution of the United States is a paramount duty for the courts,
despite the human and financial costs of protracted postconviction litigation. “[W]hile justice
delayed may be justice denied, prompt injustice is not the answer.” Haitian Refugee Ctr. v. Smith,
676 F.2d 1023, 1040 n.43 (5th Cir. 1982) (emphasis added).
         The majority looks to AEDPA in its analysis of the statute-of-limitations question. I think
this blurs the distinction between federal habeas proceedings and § 1983 actions, and misapprehends
the distinction between the two causes of action. AEDPA imposes a one-year statute of limitations
for filing a federal habeas petition. 28 U.S.C. § 2244(d)(1)(A). This one-year period promotes
finality in state-court judgments. Duncan v. Walker, 533 U.S. 167, 179 (2001) (“This provision
reduces the potential for delay on the road to finality by restricting the time that a prospective federal
habeas petitioner has in which to seek federal habeas review.”). But a § 1983 action is not an attack
No. 05-4057           Cooey v. Strickland, et al.                                              Page 13


on the validity of the death-sentenced inmate’s conviction or sentence. Cooey concedes in his
complaint that he “does not seek injunctive relief . . . as a means of attacking his underlying
conviction or death sentence.” His sentence became final on March 31, 2003, when the Supreme
Court declined to review this court’s denial of Cooey’s federal habeas petition. Cooey v. Coyle,
538 U.S. 947 (2003). Instead, he raises a claim that the state’s method for executing the death
sentence will violate his constitutional rights.
         The majority faults Cooey for failing to bring his method-of-execution challenge earlier, such
as in 1993, when Ohio made lethal injection one of the methods of execution used in the state, or
in 2001, when Ohio made lethal injection the sole method of execution. But prior to the Supreme
Court’s decision in Nelson v. Campbell, 541 U.S. 637 (2004), method-of-execution challenges under
§ 1983 were barred in this circuit. See In re Sapp, 118 F.3d 460 (6th Cir.) (holding that a
method-of-execution challenge sounded in habeas, not as a civil rights action), cert. denied sub
nom., McQueen v. Sapp, 521 U.S. 1130 (1997). In fact, this court reiterated that position shortly
before the Supreme Court decided Nelson. See In re Williams, 359 F.3d 811 (6th Cir. 2004)
(concluding that a § 1983 method-of-execution challenge should be construed as an motion for leave
to file a successive habeas petition, which was denied).
        Despite the above caselaw, the majority in the present case asserts that “[t]his Circuit’s
precedent did not prevent Lewis Williams and John Roe from filing their lethal injection § 1983
actions.” Maj. Op. at 9. I agree with the district court’s response to this line of argument: “[The
majority] is correct that Williams and Roe tried [to bring a § 1983 claim. The majority] neglect[s]
to point out, however, that Williams and Roe failed. Their § 1983 action, consistent with In re Sapp,
was construed as an unauthorized successive habeas petition and was never fully heard on the
merits.” Williams and Roe unsuccessfully sought rehearing en banc before this court and their
request for review by the United States Supreme Court was denied. Williams v. Taft, 540 U.S. 1206
(2004).
        In the present case, the district court declined the State’s invitation to hold that Cooey was
required to bring his § 1983 method-of-execution challenge prior to Nelson. I agree. Even if Cooey
could have brought his civil rights complaint before 2004, which I find dubious, I see no justification
for holding that he was required to do so.
        I am of the opinion that the district court’s analysis of Cooey’s complaint and of the State’s
motion to dismiss is thorough, compelling, and frankly more persuasive than the majority’s analysis.
After carefully considering the evidence before it, the district court articulated a reasoned basis for
setting the accrual point for statute-of-limitations purposes at the time when a prisoner’s execution
becomes imminent and the prisoner knows or has reason to know of the facts giving rise to his
§ 1983 claim. The district court fixed the point at which an execution becomes imminent as the time
“when all other legal challenges to the validity of a death sentence come to an end, i.e., when the
plaintiff has exhausted all of his state and federal avenues of relief.”
         A death-sentenced inmate knows or has reason to know of the facts of his
method-of-execution challenge when he learns the details of the protocol that will be used for his
execution. Collyer v. Darling, 98 F.3d 211, 220 (6th Cir. 1996) (“Under federal law as developed
in this Circuit, the statute of limitations period begins to run when the plaintiff knows or has reason
to know that the act providing the basis of his or her injury has occurred.”). This latter consideration
poses a greater difficulty for ensuring judicial efficiency and stability in Ohio because the lethal-
injection protocol is a creature of the Ohio Department of Rehabilitation and Correction (ODRC)
and is not established by statute or administrative rule or regulation. The ODRC can change the
protocol at any time, regardless of whether an inmate is scheduled for execution.
No. 05-4057           Cooey v. Strickland, et al.                                            Page 14


        This concerns me because, as has been evidenced in the aftermath of the Joseph Clark
execution, Ohio is free to periodically change its lethal-injection protocol. See Reginald Fields,
Ohio revamps lethal-injection procedure, Cleveland Plain Dealer, June 29, 2006, at B1 (describing
the extended effort to execute Joseph Clark after prison officials were unable to find a vein in one
arm, the vein in the other arm collapsed shortly after the execution began, and Clark informed
correctional staff that “this isn’t working”). No statutory framework determines when or how such
changes may occur. Nor is there a framework governing when, or even if, such changes will be
publicized.
         The majority asserts that the protocol changes resulting from the Clark execution do not
relate to Cooey’s “core complaints” and were not implicated as a basis for his assertion that he may
experience pain. Ohio law, however, does not require the ODRC to publish any changes to the
lethal-injection protocol. The ODRC deems some information about the protocol to be public
information and on that basis will provide it to the public upon request. But the ODRC considers
other information nonpublic.
        Moreover, I am not convinced that Ohio’s 2006 protocol changes were merely “refinements”
to the procedure as the state describes them. The switch from high-pressure saline injections to a
low-pressure saline drip to flush the IV tubing and maintain its “viability” raises concerns about
adequately flushing the tubing between injections so that the drugs do not react with one another
before they reach the inmate’s arm. I see nothing in the protocol or its amendments that addresses
the risk of such an occurrence, or what steps would be taken to prevent or remedy it. As we have
learned from reading the sometimes voluminous literature that accompanies even the simplest
prescription, drug interactions can dramatically alter the efficacy or safety of pharmaceuticals.
Without any further evidence in the record regarding how the changes affect the risk of violating a
death-sentenced inmate’s constitutional rights, I am unwilling to agree with the majority that the
recent protocol changes do not relate to Cooey’s core complaint.
B.     When Cooey had reason to know of the grounds for his claim
        The majority also contends that Cooey was aware of the lethal-injection drug combination
and the equipment that would be used as of at least 2002. This assertion rests on the inclusion with
Cooey’s complaint of a letter dated April 19, 2002 from James S. Haviland, then the Warden of the
Southern Ohio Correctional Facility, where Ohio’s only death chamber is located, disclosing
information about the lethal-injection protocol. Haviland’s letter, however, is addressed to no one
and carries no address information for any recipient. From my reading of the letter, I cannot
ascertain to whom it was addressed or when Cooey might have learned of its contents.
       In the April 19, 2002 letter, Warden Haviland provided the names of the intravenous
equipment used in executions and the generic names of the pharmaceuticals used to execute the
inmate. He did not disclose the amounts of the drugs to be used, or any information about the form
in which they were purchased, stored, or administered. Further, he did not state whether the drugs
were administered individually or all at once, and, if individually, in what sequence. There was also
no information provided about the length of the IV tubing used, whether any death-chamber
personnel monitored the tubing for kinks or blockages, or whether the tubing was flushed between
the drugs.
         In a letter dated May 30, 2002, Vincent Lagana, ODRC Staff Counsel, responded to an
unidentified recipient’s request for additional information about the lethal-injection protocol by
noting that “information about [lethal-injection] training, procedures, and procurement . . . . falls
outside the scope” of the Ohio Public Record Law. Nonetheless, Lagana provided some information
about the procedure because “the Department recognizes [that] the public has legitimate interests
in this subject.” This information revealed that the three drugs in the lethal-injection protocol were
No. 05-4057           Cooey v. Strickland, et al.                                              Page 15


administered in “normal saline concentration,” that the thiopental sodium and pancuronium bromide
were purchased from “a local pharmacy” by the correctional institution pharmacy, and that the drugs
were kept by the Warden in accordance with procedures developed by the Ohio State Board of
Pharmacy and the Drug Enforcement Agency.
        I note, however, that the letter also includes potentially misleading information. For
example, it states that “[a] Medical Doctor has pronounced death.” Although this might be true to
the extent that a medical doctor pronounced the death of an inmate at some point after the execution
was completed, it fails to acknowledge that several associations of medical professionals, including
the American Medical Association (AMA) and the Society of Correctional Physicians (SCP), direct
their members not to be involved in a legally authorized execution. The AMA permits physicians
to “certify[] death, provided that the condemned has been declared dead by another person.” Am.
Med. Ass’n, Code of Ethics E-2.06 (2000). Under the SCP Code of Ethics, “[t]he correctional health
professional shall not be involved in any aspect of execution of the death penalty.” Soc’y of Corr.
Physicians, Code of Ethics (1998), http://www.corrdocs.org/ethics.html (last visited Feb. 16, 2007).
        I take the facts in the light most favorable to Cooey, as I must when reviewing a denial of
a motion to dismiss under the de novo standard. See Miller v. Currie, 50 F.3d 373, 377 (6th Cir.
1995). After reviewing the letters from ODRC officials, which purport to set out the lethal-injection
policy that was in place in 2002, I am unable to conclude that Cooey had reason to know of the facts
underlying his claim prior to that time. The ODRC’s response to requests for information has been
grudging and incomplete, and it apparently has unfettered discretion in determining whether the
requested information is or is not to be made public.
        Even having read the letters, I can see how a reasonable person would still be uninformed
as to Ohio’s death-penalty protocol or how it might support a civil rights action. At best, Cooey’s
knowledge of the protocol as of May of 2002 would have been murky; it would have been totally
opaque at any time prior to that date. The point of all this is that the majority’s assertion that Cooey
had reason to know of the basis for his complaint in the 1990s is not supported by the record. And
although I recognize that May of 2002 represents a point more than two years before Cooey in fact
filed his § 1983 complaint, this is only one part of the necessary analysis. The other part is to
determine when Cooey’s execution date became imminent. This did not occur until March 31, 2003,
when the Supreme Court denied his petition for certiorari in his habeas proceeding. He filed his
present complaint on December 8, 2004, which was 21 months later.
C.      When Cooey’s execution became imminent
         Almost every death-sentenced inmate challenges his or her conviction and sentence through
habeas proceedings. Under the majority’s rationale, however, virtually every death-sentenced
litigant will be barred from bringing a § 1983 action challenging the constitutionality of the method
of execution chosen by the State. Habeas proceedings have become, for good or for ill, a routine
part of the process of carrying out a death sentence in our criminal justice system. To require a
petitioner to file a § 1983 action three to five years before his or her execution in order to obtain
legal review of the lethal-injection protocol strikes me as counterintuitive, unduly harsh, and just
plain wrong. Yet that is what the majority’s rationale will require.
        Moreover, both the petitioners and the courts will have to manage the cognitive dissonance
and inefficiency of simultaneously deciding (1) habeas petitions attacking the validity of the
conviction and sentence, and (2) § 1983 actions challenging the constitutionality of the procedure
used to carry out the sentence. The majority will thus force death-sentenced prisoners to pursue
their habeas claims that assert their lack of culpability or, in some instances, their actual innocence,
while simultaneously implying their guilt by requesting that the sentence imposed upon them be
carried out in a constitutionally compliant manner.
No. 05-4057           Cooey v. Strickland, et al.                                               Page 16


        Statutes of limitations are intended to “promote judicial economy and protect defendants’
rights.” John Hancock Fin. Servs., Inc. v. Old Kent Bank, 346 F.3d 727, 734 (6th Cir. 2003). But
the concept of judicial economy contemplates more than just the minimization of temporal delay
between the imposition of a capital sentence and an inmate’s execution. Although the Fifth Circuit
has held that a method-of-execution challenge can be raised at any time after an inmate’s sentence
became final on direct review, Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (per curiam),
this analysis is incomplete. The majority defends its adoption of the Neville accrual point as “the
most logical,” but I consider even more logical the analysis of the district court in the present case
that fixes the statute of limitations accrual date at the point when a petitioner’s execution becomes
imminent and he has reason to know of the facts giving rise to his claim.
        This accrual date provides clarity and certainty to both the death-sentenced inmate and the
State that the sentence is final and not susceptible to attack, that the execution date is set, and that
the protocol for that execution is likely fixed. Such clarity also aids the judicial process and
increases the efficiency of judicial proceedings by ensuring that the federal courts are not overseeing
simultaneous but contradictory arguments from the parties.
        Contrary to the majority, I see nothing in the Supreme Court’s February 21, 2007 opinion
in Wallace v. Kato, 127 S. Ct. 1091 (2007), that bears on the issue of when the statute of limitations
should accrue in the case before us. Wallace is a civil rights case that turned on the well-recognized
point that “[t]he cause of action accrues even though the full extent of the injury is not then known
or predictable.” Id. at 1097. Here, Cooey had no reasonable basis to know if he would have any
injury at all (in terms of the lethal-injection protocol) until his execution date became imminent. I
therefore conclude that Cooey’s § 1983 action is not barred by Ohio’s two-year statute of
limitations.
D.      Equitable arguments to forestall delay
        Because I believe that the statute of limitations should not begin to run until an execution
becomes imminent, and because Ohio will almost always move promptly to set an execution date,
I would envision that the statute of limitations would rarely, if ever, be an issue in these § 1983
cases. The crucial issue for federal courts to decide, then, is not the statute of limitations, but
whether equitable considerations should bar a prisoner from bringing a last-minute § 1983 claim.
This is a concern that Ohio makes much of in the present case. Although there is undoubtedly some
merit to this concern, I see no reason to diverge from the Supreme Court’s position in Hill v.
McDonough, 126 S. Ct. 2096 (2006), 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.” Id. at 2104. This includes applying “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.” Nelson v. Campbell,
541 U.S. 637, 650 (2004).
        The district court, with its ability to hear and weigh the evidence, necessarily has the greatest
information available to it from which to balance the equities when considering a death-sentenced
prisoner’s request for a stay of execution. As we have seen in the present case, the district court has
capably engaged in that very task, despite the sometimes inconsistent guidance received from this
court. Compare Cooey (Lundgren) v. Taft, No. 06-4374 (6th Cir. Oct. 23, 2006) (summarily
vacating the stay of execution for Jeffrey Lundgren, who had an execution date of October 24,
2006), with Cooey (Henderson) v. Taft, No. 06-4527 (6th Cir. Dec. 1, 2006) (reversing the district
court’s denial of Jerome Henderson’s motion to stay his execution).
       The district court also considered and addressed the concern that death-sentenced inmates
might seek to use § 1983 actions as a delaying tactic, cautioning would-be plaintiffs that “nothing
No. 05-4057           Cooey v. Strickland, et al.                                              Page 17


. . . should be construed as guaranteeing or even suggesting that a plaintiff who waits too long to file
his § 1983 action raising a method-of-execution claim will be entitled to a preliminary injunction.”
This concern about excessive delay was underscored by the Supreme Court’s decision in Hill, which
stated that equity requires that inmates seeking a stay of execution to raise a § 1983 claim must meet
all the requirements for a stay. 126 S. Ct. at 2104. “[E]quity must be sensitive to the State’s strong
interest in enforcing its criminal judgments without undue interference from the federal courts.” Id.
        Factors that may play a persuasive or even dispositive role in a court’s determination of
whether to grant a stay of execution might include such considerations as (1) whether the protocol
has recently been changed, (2) whether the petitioner has been diligent in pursuing his or her claim,
(3) whether the petitioner has taken reasonable steps to ascertain what the protocol is (and I note that
past ODRC letters in response to requests for information about the protocol have been shown to
be incomplete and terse to the point of being uninformative), and (4) whether the traditional factors
involved in the balancing test for granting a preliminary injunction weigh in favor of a stay. A
conclusory statement by a petitioner with no factual support or development is unlikely to result in
the entry of a stay in this or any other matter. Petitioners who have been diligently pursuing their
method-of-execution claims, in contrast, will likely include affidavits from a medical expert in
support of their arguments. If reasonable jurists could debate whether a well-documented claim
could result in the relief that the petitioner seeks, then equitable considerations, barring other
persuasive evidence to the contrary, would weigh in favor of granting a stay.
        I again wish to emphasize that the relief sought here is not to be spared the death penalty,
but rather to be spared from cruel and unusual punishment in the administration thereof. Because
I am convinced that Cooey brought his § 1983 claim within the two-year statute of limitations period
as properly defined, I respectfully dissent.
