                     RECOMMENDED FOR FULL-TEXT PUBLICATION
                          Pursuant to Sixth Circuit Rule 206
                                File Name: 09a0281p.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 12, 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. A separate dissenting
opinion by Judge MERRITT will be forthcoming.
                                _________________

                                     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


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


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
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.
No. 08-4199           Getsy v. Strickland, et al.                                         Page 3


                                               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.

         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.
No. 08-4199           Getsy v. Strickland, et al.                                        Page 4


          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.

                                               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.
No. 08-4199         Getsy v. Strickland, et al.                                           Page 5


        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-
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
No. 08-4199          Getsy v. Strickland, et al.                                        Page 6


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
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.
No. 08-4199         Getsy v. Strickland, et al.                                       Page 7


                                             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
                                                  1
of suffering” with regard to those changes. Such a deficiency, however, is of little import

         1
           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.
