                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0356p.06

                  UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                       X
                                                        -
 LAWRENCE REYNOLDS,
                                                        -
                              Plaintiff-Appellant,
                                                        -
                                                        -
                                                             No. 08-4144
             v.
                                                        ,
                                                         >
                                                        -
                                                        -
 TED STRICKLAND, et al.,
                                                        -
                       Defendants-Appellees.
                                                       N

                           Decided and Filed: October 5, 2009

                  Before: MARTIN, COLE, and SUTTON, Circuit Judges.

                                    _________________

                                          ORDER
                                    _________________

        BOYCE F. MARTIN, JR., Circuit Judge. Lawrence Reynolds, an inmate on death

row in the State of Ohio, has moved for a stay of his execution, currently set for October 8,

2009. Reynolds’ current motion is based on an Eighth Amendment challenge to the Ohio

lethal injection protocol. As a general proposition, this claim is currently barred by the two-

year statute of limitations that we put in place in Cooey v. Strickland (Cooey II), 479 F.3d

412 (6th Cir. 2007), reh’g denied en banc, 489 F.3d 775 (6th Cir. 2007). However, after we

decided Cooey II, Ohio revised its execution protocol in May 2009 and experienced serious

and troubling difficulties in executing at least three inmates, most recently Romell Broom.

These disturbing issues give rise to at least two questions: first, whether Ohio is fully and

competently adhering to the Ohio lethal injection protocol given (a) their failure to have a

contingency plan in place should peripheral vein access be impossible, (b) issues related to

the competence of the lethal injection team, and (c) other potential deficiencies; and second,

                                              1
No. 08-4144         Reynolds v. Strickland, et al.                                    Page 2


whether these instances present sufficient new, additional factors to revive Reynolds’ Eighth

Amendment claims otherwise extinguished by Cooey II.


        Broom’s arguments about these very issues will be heard before the Honorable

Gregory Frost of the United States District Court of the Southern District of Ohio; to permit

this, his execution has been stayed until at least November 30, 2009. Given the important

constitutional and humanitarian issues at stake in all death penalty cases, these problems in

the Ohio lethal injection protocol are certainly worthy of meaningful consideration. Judge

Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds

and Broom.


        For the foregoing reasons, we hereby GRANT Reynolds’ motion for a stay of

execution and REMAND his case to Judge Frost for fact-finding and evidentiary hearings

on the merits of his arguments.
No. 08-4144         Reynolds v. Strickland, et al.                                     Page 3


        COLE, J. concurring. Although I fully agree with the Court’s order, I write

separately to address a number of issues raised by the dissent.


        The dissent argues that the State’s eighteen unsuccessful efforts to run an intravenous

line into Romell Broom’s veins over the course of two hours demonstrates the sensibility of

Ohio’s execution protocol because the State ultimately halted the execution attempt. The

argument continues that, if the same problems arise during Reynolds’ execution, this

execution similarly would be stopped. Thus, the likelihood that he would ultimately prevail

in his § 1983 claim is too slim to warrant a stay of execution. This argument misses the

mark.


        Preliminarily, it overlooks the possibility that Broom has already suffered an Eighth

Amendment violation by being subjected to this failed execution attempt. Even if Reynolds’

execution similarly was halted partway through, at that point he already may have suffered

constitutional harm under Ohio’s protocol. Although the details of the failed Broom

execution have not yet fully emerged, the initial reports suggest that the execution attempt

could provide uniquely relevant evidence in support of the proposition that there is a

“demonstrated risk of severe pain” under the revised Ohio protocol. See Baze v. Rees, —

U.S. —, 128 S.Ct. 1520, 1537 (2008).


        The failed Broom execution raises concerns about the risks of maladministration

under the Ohio protocol, and its intravenous siting provisions in particular. Ohio’s protocol

allows for “as much time as is necessary to establish two [intravenous] sites” and the changes

specifically grant the execution team members discretion in deciding if and when to abandon

such efforts if problems arise. Reynolds raised concerns about the discretion granted to the
No. 08-4144         Reynolds v. Strickland, et al.                                     Page 4


execution team by the May 2009 revisions prior to the failed Broom execution and has

argued that the risks presented by maladministration are part of his “core complaints.” That,

in the interim, the State’s procedures further were called into question increases both the

likelihood that Reynolds could ultimately succeed on the merits of his § 1983 claim and the

likelihood that, if no stay were to be granted, he would be harmed irreparably.


        The dissent also emphasizes that Ohio revised its protocol precisely to alleviate

Eighth Amendment concerns. While I have no doubt that Ohio did not revise its execution

protocol in order to make executions more cruel or unusual, the State’s intent is not at issue.

The question is whether the changes to the protocol amount to a factual predicate sufficient

to revive Reynolds’ Eighth Amendment challenge under Cooey II. Even given the two

previous instances when Ohio ran into difficulties administering its lethal injection protocol,

the halting of Broom’s lethal injection operation prior to its completion was unprecedented.

This event only strengthens Reynolds’ argument that the May 2009 changes sufficiently

raised the risks of maladministration to revive his claims.


        Finally, the dissent argues that “the Constitution allows the people to make policy

mistakes, . . . and correct them for themselves over time, and we should let that process run

its course . . . .” However, in considering a motion for a stay of execution, we must balance

both the likelihood that the prisoner will prevail on the merits and the likelihood that, if no

stay is granted, irreparable harm will occur. Indeed, the State has agreed not to attempt

another execution of Broom until the district court can reconsider the matter. In this context,

where allowing the process to run its course could result in the severest of consequences, it

is more prudent to allow the district court to take these new circumstances into consideration.
No. 08-4144         Reynolds v. Strickland, et al.                                     Page 5


        SUTTON, Circuit Judge, dissenting. I have some sympathy for my colleagues’

position on this stay motion, but I cannot bring myself to join them.


        One way to look at Reynolds’ request for a stay—and the only way to look at his

underlying appeal—is that it is based on a false premise. He claims that Cooey II was

wrongly decided and claims that we, as a three-judge panel, can overrule or sidestep the

decision of a prior panel. In that sense, his position is no different from the position of the

capital defendant in Getsy v. Strickland, 577 F.3d 309 (6th Cir. 2009), where we rejected all

of the Cooey II arguments that Reynolds raises in his underlying appeal. One panel cannot

overrule another panel.


        Another way to look at Reynolds’ stay motion—though not his underlying

appeal—is that he seeks to make a new argument not addressed in Getsy. His § 1983 claim

is not time barred, the argument goes, because, after he filed his appellate briefs, the State

attempted to execute Romell Broom on September 15, 2009, the execution team was unable

to access a usable vein on Broom after two hours, and at that point the State postponed

Broom’s execution “to allow the Department [of Rehabilitation and Correction] to

recommend appropriate next steps to” Governor Strickland. Ted Strickland, Warrant of

Reprieve (Sept. 15, 2009). Because Cooey II suggests that the statute of limitations period

may start anew when the execution “protocol . . . change[s]” in a way that “relate[s]” to the

petitioner’s “core complaints,” Cooey v. Strickland (Cooey II), 479 F.3d 412, 423 (6th Cir.

2009), Reynolds claims that his § 1983 claim is not time barred. But, as far as the record and

the parties’ papers show, nothing has changed since September 15th, at least nothing that

would suggest the State has changed its protocol in a way that risks needless harm to
No. 08-4144          Reynolds v. Strickland, et al.                                      Page 6


Reynolds. Because the State has not materially altered its protocol, Reynolds has no perch

from which to argue that he is challenging a new procedure.


        All of this explains why I cannot vote in favor of a stay in Reynolds’ case at the

panel stage.


        But none of this would prevent me from urging the full court to consider Reynolds’

claim, to reconsider whether Cooey II was rightly decided and to grant a stay in the interim.

I doubt the value of that approach, however, for three reasons. One, while Cooey II is not

beyond reproach, I have yet to hear a demonstrably better suggestion for determining when

the limitations period should start. The Cooey II panel dealt with a legal issue for which

there was little, if any, statutory guidance, and as a result it borrowed a limitations rule from

a related area—habeas corpus—that must account for the same kinds of problems associated

with eleventh-hour litigation and relitigation that frequently accompany challenges to

execution protocols. Id. at 421 (analogizing to habeas corpus based on the same need for

“timely enforcement of [the] sentence” and “protect[ing] States from dilatory or speculative

suits”) (quotation marks omitted). That assuredly was a reasonable choice, even if it remains

a choice open to second guessing, as invariably will be the case when there is no direct

statutory guidance at hand.


        Two, even if there may be other sensible ways to handle the accrual issue, that does

not necessarily make a stay appropriate (or for that matter warrant reconsideration of Cooey

II). In the context of a stay motion, there is no difference between a time-barred claim and

a non-time-barred claim if both claims have the same slim prospect of success. One does not

grant a stay to hear a claim, whether it contains a procedural defect or not, if the underlying
No. 08-4144         Reynolds v. Strickland, et al.                                        Page 7


claim has little chance of success on the merits. That is precisely Reynolds’ problem. The

objective of this § 1983 lawsuit is to challenge Ohio’s underlying execution protocol. Yet,

in Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520 (2008), the Supreme Court rejected an Eighth

(and Fourteenth) Amendment challenge to Kentucky’s three-drug protocol for executing

capital defendants. In all material respects, Ohio and Kentucky have the same procedure,

making it exceedingly unlikely that Reynolds could succeed where Baze failed. Making

matters worse for Reynolds, Ohio has changed its procedure since Baze, all in ways designed

to make the wrenching task of executing an individual more humane. (More on that below.)

Since we must start with the presumption that Ohio’s execution protocol is constitutional,

shouldn’t we end with that presumption if the United States Supreme Court has approved a

materially identical procedure?


        The Baze plurality opinion seems to think so:


        A stay of execution may not be granted on grounds such as those asserted
        here unless the condemned prisoner establishes that the State's lethal
        injection protocol creates a demonstrated risk of severe pain. He must show
        that the risk is substantial when compared to the known and available
        alternatives. A State with a lethal injection protocol substantially similar to
        the protocol we uphold today would not create a risk that meets this
        standard.
Id. at 1537.


        Three, the only path left to capital inmates after Baze is narrow, one that Reynolds

cannot take and one that suggests the significance of Cooey II is overrated. Even after Baze,

a capital inmate may show that a three-drug execution protocol is “cruel and unusual” under

the Eighth Amendment if it intentionally or recklessly imposes needless harm on the

individual—if, to borrow from Baze, the inmate has “demonstrate[d] an ‘objectively
No. 08-4144         Reynolds v. Strickland, et al.                                    Page 8


intolerable risk of harm’ that officials may not ignore.” Baze, 128 S.Ct. at 1531 (plurality)

(quoting Farmer v. Brennan, 511 U.S. 825, 846 (1994)). Nothing in the record or in

Reynolds’ papers suggests that Ohio’s protocol on its face falls within this narrow category,

and Baze’s approval of the Kentucky procedure strongly suggests it does not.


        That, however, does not preclude an inmate from showing that, as applied to him and

as applied to other like-situated individuals, the procedure comes within the narrow Baze

exception. An inmate who shows that a State has made detrimental changes to its procedure

after the original accrual of his §1983 claim, or who shows defects in the procedure revealed

by an “objectively intolerable risk of harm” imposed on similarly situated individuals after

the accrual date, not only might have a cognizable Baze claim but also would seem to fit

within the exception to Cooey II. The State, I suspect, would agree. Were a cruel and

unusual feature of Ohio’s protocol suddenly revealed during an execution, I firmly doubt the

State would press ahead with the next execution solely on the ground that the capital

defendant should have filed his § 1983 claim several years earlier. I, for one, would not

construe Cooey II to tolerate state action to the contrary.


        The larger question, then, is not whether Cooey II was rightly decided; it is whether

Reynolds has a cognizable Baze claim with any prospect of success. Reynolds’ key

argument in that respect turns on the recent failed Broom execution, namely the failure of

the State to establish a workable IV within two hours and its decision to postpone the

execution at that point. I am not persuaded.
No. 08-4144         Reynolds v. Strickland, et al.                                     Page 9


        Here is what Ohio’s protocol has to say on the point:


        The team members who establish the IV sites shall be allowed as much time
        as is necessary to establish two sites. If the passage of time and the
        difficulty of the undertaking cause the team members to question the
        feasibility of two or even one site, the team will consult with the warden.
        The warden, upon consultation with the Director and others as necessary,
        will make the decision whether or how long to continue efforts to establish
        an IV site. The Director shall consult with legal counsel, the office of the
        Governor or any others as necessary to discuss the issues and alternatives.
Ohio Dep’t of Rehabilitation and Correction Policy Directive No. 01-COM-11, ¶ VI.B.7.f

(Effective May 14, 2009).


        It is difficult to challenge the wisdom of allowing the State to postpone an execution

when “the passage of time and the difficulty of the undertaking” cause the State “to question

the feasibility” of establishing the IV lines. Created in May 2009, this option was designed

to correct a problem that emerged during a prior execution, the Clark execution, in which the

State also had trouble running an IV line on the inmate. The option is as sensible as it is

humane. Viewed from this perspective, the Broom execution may have “failed” by one

measure because Broom was not executed. But, by another measure, the Governor’s

decision not to proceed with the execution of Broom, after two hours of attempting to run

IV lines on him, confirms the virtue of the procedure and the Governor’s responsible

behavior in implementing it. The postponement option is designed to avoid “cruel and

unusual” punishment, not to further it. That is why Reynolds’ reliance on the number of

failed efforts to run a needle/IV line into one of Broom’s veins—18 in total—does not help

him. It instead shows why the Governor sensibly called off the execution and proves he

would do the same if Reynolds ran into a similar problem. Why assume an execution

protocol is unconstitutional when one of the humane features of the protocol—that the State
No. 08-4144         Reynolds v. Strickland, et al.                                   Page 10


will not continue trying to access a usable vein beyond a sensible time limit—is being

followed?


        What, moreover, is a better “alternative[]”? See Baze, 128 S.Ct. at 1537 (plurality)

(a stay of execution requires “show[ing] that the risk is substantial when compared to the

known and available alternatives”) (emphasis added). Reynolds argues that the Broom

execution attempt proves that Ohio’s protocol is unconstitutional and that Ohio’s execution

team is “complete[ly] incompeten[t].” Supp. Br. 6. But he offers no alternatives. He does

not argue that the Governor should stop a delayed execution in less than two hours. He does

not argue that the State should try to run an IV line earlier or test whether a capital

defendant’s veins are accessible before the execution date, and he has not requested that the

State try either approach with him. He does not claim that he has the same kind of

inaccessible-vein problem that Broom has. And he does not explain why EMTs may not

oversee this process or what should be done instead given the understandable reluctance of

other members in the medical profession to assist the effort. Keep in mind that the Kentucky

protocol uses EMTs, and Baze approved that approach, in part because the “qualifications”

of EMTs “substantially reduce the risk of IV infiltration.” Id. at 1534; see also id. at 1539

(Alito, J., concurring) (“[A] suggested modification to a lethal injection protocol cannot be

regarded as ‘feasible’ or ‘readily’ available if the modification would require participation

. . . by persons whose professional ethics rules or traditions impede their participation.”).


        The Broom experience in the end simply does not validate Reynolds’ claim. Calling

off an execution after two hours because the State could not run the requisite IV lines does

not show that the State’s protocol violates the Eighth Amendment. What the Broom
No. 08-4144         Reynolds v. Strickland, et al.                                   Page 11


experience shows, and what the Clark and Newton experiences before that show, is that the

State’s EMTs have a difficult time running IV lines on some individuals. But we now know

what happens when that is the case: The Governor will stop the execution after two hours.

That approach removes the foundation for an Eighth Amendment claim; it does not lay the

groundwork for one. Surely it would be better, at least by one way of looking at it, if the

prison’s EMTs could run IV lines on anyone and everyone. Other members of the medical

profession, however, understandably wish to focus on assisted living, not assisted dying (or

executing). And it is difficult to maintain that the elected officials in a State may not

continue to implement a death penalty when they have developed a sensible remedy for the

key problem on the table: an inability to access veins in some individuals. See Baze, 128

S.Ct. at 1529, 1531,1537 (plurality).


        The last problem with Reynolds’ motion for a stay is that there is no way to grant it

without effectively imposing a moratorium on implementing the death penalty in Ohio.

Reynolds has not argued or shown that he has difficult-to-access veins, as Broom does.

There thus is nothing unique about his case that suggests a special as-applied problem that

warrants a stay in his case, as opposed to any other. See id. at 1529 (“We begin with the

principle, settled by Gregg, that capital punishment is constitutional. It necessarily follows

that there must be a means of carrying it out. Some risk of pain is inherent in any method

of execution—no matter how humane—if only from the prospect of error in following the

required protocol.” (citation omitted)).


        No doubt, the Governor himself has the right to impose a moratorium. And a case

could be made that it would be reasonable to do so. But the question is whether the Eighth
No. 08-4144         Reynolds v. Strickland, et al.                                    Page 12


Amendment requires the Governor to take this approach. A reasonable thing to do is not

necessarily a constitutionally mandated thing to do. See id. at 1538 (“Throughout our

history, whenever a method of execution has been challenged in this Court as cruel and

unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved

to more humane methods of carrying out capital punishment.”).


        As an individual, I might prefer to live in a State that does not have a death penalty

or at least one where it is less frequently imposed. But the Constitution allows the people

to make policy mistakes, if policy mistakes they are, and correct them for themselves over

time, and we should let that process run its course unless or until their representatives cross

a cognizable constitutional limit. That is particularly so in the area of capital punishment,

where the Supreme Court has long “tolerated continuity” and “the democratic processes”

nonetheless frequently have “demanded change.” Workman v. Bredesen, 486 F.3d 896, 907

(6th Cir. 2007).


                                                 ENTERED BY ORDER OF THE COURT


                                                       /s/ Leonard Green
                                                 ___________________________________
                                                               Clerk
