with whom
GIBBONS, Circuit Judge, joins, concurring in the denial of rehearing en banc. ,In his petition for rehearing and for rehearing en banc, Kenneth Biros principally argues that the panel’s order vacating the district court’s stay of execution, Cooey (Biros) v. Strickland, 588 F.3d 921, No. 09-4300, 2009 WL 4061632 (6th Cir. Nov. 25, 2009), improperly applies the law of mootness. I disagree and remain comfortable with the panel’s conclusion in the context of Ohio’s change from a facially constitutional execution protocol, see Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), to an improved execution protocol. But even if one is unsure about that conclusion, Biros faces a series of likelihood-of-success problems — some having nothing to do with the law of mootness — that stand in the way of granting his request to reinstate the district court’s stay order.
In thinking about Biros’ en banc petition and his underlying request to stay his December 8th execution, the key point, it seems to me, is that the district court’s October 19, 2009 stay order does not offer any basis for staying the execution today. That order of course dealt with the old *925protocol, not the new one, and the order itself acknowledges that the State is considering changing its protocol and tells both parties that the court “reserves the right to reconsider this order staying the execution of Biros should a new protocol as developed by Defendants render Biros’ claims regarding the May 2009 protocol moot.” When the State returned to the district court on November 13th after announcing the new protocol, however, the district court refused to consider whether to vacate the stay before the execution date. The district court thus offered no new reasons (or for that matter old reasons) for continuing to keep the stay in place — even with respect to a new, markedly changed protocol.
That left the panel with a stay of execution that had no supporting rationale. The new procedure addressed two of the central complaints about Ohio’s old execution protocol: the use of a three-drug protocol and the difficulty in accessing the veins of some individuals. With the adoption of a one-drug protocol and with the development of a back-up plan for individuals with difficult-to-aecess veins, Ohio had resolved the central issues that might have supported a stay with respect to the old protocol — but not the new one.
That development leaves Biros with serious likelihood-of-success problems. One, for the reasons stated in the panel opinion, the adoption of this new procedure moots the old challenge. Two, even if one thinks there is room for disagreement about this point, that does not justify a stay. At a minimum, the new protocol “likely” moots the old challenge, and that is enough to create a likelihood-of-success problem for Biros when it comes to premising a request for a stay on orders related to a different protocol. Three, even if that is too much to accept, Biros still must show why the new protocol is likely unconstitutional — and the old orders (dealing with the prior procedure) get him nowhere on that point. Moot or not, in other words, the old orders still must provide a basis for staying this protocol. Since nearly everything in the assorted orders from the district court and our court with respect to the old protocol dealt with the three-drug protocol and difficult-to-aceess veins, these orders simply cannot provide a likelihood-of-success foundation for staying the new protocol.
Perhaps one exception to this last point is that, according to Biros, the old procedure and the new one share a common problem: poor training by the State of the relevant medical staff and the use of EMTs in implementing the protocol. But Kentucky faced similar allegations in Baze, and the Court upheld the procedure nonetheless. Baze, 128 S.Ct. at 1533-34. Through it all, it deserves emphasis, the one-drug protocol that Ohio now voluntarily plans to use is the one that the plaintiffs (unsuccessfully) claimed in Baze was constitutionally required. Id. at 1534.
Biros’ petition for rehearing and rehearing en banc does not provide a basis for staying his December 8th execution.