dissenting.
This case is about the meaning and precedential scope of Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007) (“Cooey II”). Judge Gilman, the author of the majority opinion in the instant case, dissented from and strongly disapproves of the Cooey II decision, a case that expressly allows actions based on a new lethal injection “protocol.” And Cooey certainly does not even mention or attempt by any language or logic to foreclose actions when the Supreme Court creates a new cause of action or when new facts arise predicting severe pain in the upcoming lethal injection process. Whatever defects my colleagues see in Cooey II, they are minor — a mere speck in the eye of justice — compared to their opinions that create a mote that cannot be removed without drastic surgery by the en banc court. Rather than create such an intractable mess, it would have been much more reasonable and judicious to write an opinion along the following lines that does not use Cooey II to bar actions prematurely that deserve to be considered on the merits.
*323I.
In Cooey II, this Court held that when a prisoner brings a § 1983 challenge to a State’s lethal-injection protocol, the date on which the statute of limitations begins to run — the so-called “accrual date” — is determined by three considerations: (1) “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review,” see 28 U.S.C. § 2244(d)(1)(A), or (2) when lethal injection becomes the exclusive method of execution, whichever is later, unless (3) “the lethal injection protocol ... changes” in a way that “relates” to the condemned prisoner’s “core complaints” about the lethal-injection process. See Cooey II, 479 F.3d at 421-23. In Cooey II, the Court found that the second element — the date in 2001 when lethal injection became mandatory in Ohio — determined the accrual date, thus placing Cooey’s complaint, which was filed in 2004, outside of the two-year statute of limitations made applicable by federal case law to constitutional claims under § 1983. See id. at 424.
But Getsy argues that this reasoning is not the end of the case because two additional significant events distinguish his case from Cooey II and revise and extend the accrual date. The first is the Supreme Court’s decision in Baze v. Rees, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), which recognized for the first time the viability of an objection under the Eighth Amendment to a lethal-injection protocol that creates “a substantial risk of serious harm” or an “objectively intolerable risk of harm” when there is an “alternative procedure” that is “feasible, readily implemented, and in fact significantly reduced” that substantial or objectively intolerable risk. See id at 1531-32 (plurality opinion). Getsy argues that this new rule of constitutional law resets the accrual date for such Eighth Amendment challenges. Second, and relatedly, Getsy also argues that he, unlike Cooey, is challenging a recent material alteration to Ohio’s lethal-injection protocol and that the accrual date should be determined by reference to the date of that alteration.
II.
To determine whether these arguments are precluded or approved by Cooey II, it is important to understand the nature of the doctrine of binding precedent, which has been a part of our judicial process since at least the time of Henry de Brae-ton, whose work The Laws and Customs of England was published in the thirteenth century. See Sir Frederick Pollock & Frederic William Maitland, The History of English Law 183-84 (Lawyers Literary ed.1959). This doctrine is especially necessary in the federal court of appeals, a multi-judge court, in which confusion would reign supreme and “the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case.” See Benjamin Cardozo, Lecture IV: Adherence to Precedent, in The Nature Of The Judicial Process 149 (1920). Like cases must be decided alike, both for this prudential reason and because our judicial goal of fostering equal citizenship and equal status under the law requires it. Yet “in this perpetual flux [of cases], the problem which confronts the judge is ... [that] he must first extract from the precedents the underlying principle, the ratio decidendi ” of the case. Id. at 28. My colleagues in the majority simply fail to try to narrow Cooey II to its essential holding.
In Cooey II, the Court analogized a § 1983 method-of-execution challenge to a petition for habeas corpus for the purpose of determining the accrual date. See Cooey II, 479 F.3d at 421-22. That is, the *324ratio decidendi of Cooey II is that the requirements set out in 28 U.S.C. § 2244(d)(1) determine the date upon which a § 1983 claim like this one accrues. That statute provides as follows:
The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).1
The Court in Cooey II only applied subsection (A) because it was the only one relevant to that particular case. Baze had not yet been decided, and the 2009 amendments had not taken place, so the applicability of subsections (C) and (D) were neither argued nor considered, and it ignores the principle of extracting and applying the ratio decidendi of a casé to interpret it to require us to ignore the other provisions of § 2244(d)(1). Cooey II does not stand for the rule that my colleagues claim, ie., that in all lethal-injection cases the statute of limitations expired two years after Ohio adopted lethal injection as the exclusive method of execution in 2001. It stands rather for the creation of a process that imports from the federal habeas corpus statute the accrual dates set out for the statute of limitations. Under those rules, when the whole process set out in Cooey II is properly used, Getsy’s case is viable and well within the statute of limitations if it fits within the criteria laid out in subsections (C) or (D).
A. Subsection (C)
Subsection (C) has three elements: the claimant must (1) assert a constitutional right, (2) that has been “newly recognized by the Supreme Court” and (3) “made retroactively applicable to cases on collateral review.” Those elements are present here. In Baze, the plurality made clear that the question before it was one of first impression, and that the Court had “never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Baze, 128 S.Ct. at 1530. The Court had previously upheld every type of execution method, from hanging to shooting to electrocution. See id. at 1526-27, 1530. But in Baze it recognized that execution by lethal injection could violate the Eighth Amendment if it involves a “demonstrated risk of severe pain” that is “substantial when compared to the known and available alternatives.” Id. at 1537.
Justices Thomas and Scalia observed that this “formulation of the governing standard” found “no support in the original understanding of the cruel and unusual punishment clause or in any of our previous method-of-exeeution cases,” id. at 1556 (Thomas, J., concurring in the judgment), because no case had previously suggested that capital punishment would be unconstitutional if “it involve[d] a risk of pain— whether ‘substantial,’ ‘unnecessary,’ or ‘untoward’ — that could be reduced by adopting alternative procedures,” id. at 1560. Justice Thomas went on to observe that the new “formulation” of the standard was more lenient than the Sixth Circuit’s previous formulation in Workman v. Bredesen, *325486 F.3d 896, 907 (6th Cir.2007), which required an intent to create pain. The separate opinions of Justice Stevens, Justice Breyer, and Justice Ginsburg (joined by Justice Souter) likewise make clear that the plurality opinion creates a “newly recognized” constitutional right, which in their views arise from the doctrine that, with respect to capital punishment, the Eighth Amendment “ ‘must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.’ ” See id. at 1568 (Ginsburg, J., dissenting)(quoting Atkins v. Virginia, 536 U.S. 304, 311-12, 122 S.Ct. 2242, 153 L.Edüd 335(2002)).
The Court also made clear that the new standard would apply to all condemned prisoners awaiting execution by lethal injection. The plurality discusses at some length how the new formulation should be “implemented” with respect to stays of execution. See id. at 1537-38 (plurality opinion). Justice Alito’s concurrence fleshes these principles out further. See id. at 1538-42 (Alito, J., concurring). It is clear that they contemplate the Baze formulation applying to all challenges to lethal-injection protocols, whether those challenges are brought on direct appeal or— far more likely — by prisoners whose direct appeals have become final. Thus, the Supreme Court has now created a “newly recognized” constitutional right “made retroactive to cases on collateral review.” Absent a later date made applicable by subsection (D), the accrual date for challenges of this sort would be the date of the Supreme Court opinion in Baze, April 16, 2008. We are not called upon to apply the new formulation to the present case on the merits and should leave that in the first instance to the District Court on remand. It is clear, however, that under this new accrual date, Getsy’s claim is not barred by the two-year statute of limitations.
B. Subsection (D)
Getsy also asserts that the May 2009 changes to Ohio’s lethal-injection protocol grant the Warden broad discretion to determine the execution procedures used, thereby increasing the risk of unconstitutional execution. The new protocol states:
o. The Warden shall consider the needs of the condemned inmate, visitors and family members, the execution team, prison staff and other, and may make alterations and adjustments to this or other policies as necessary to ensure that the completion of the execution is carried out in a humane, dignified and professional manner.
May 14, 2009, Execution Protocol Number 01-COM-11, superseding 01-COM-11 dated Oct. 11, 2006. Getsy contends that, under this new discretionary standard, neither avoidable, severe pain nor intentionally inflicted pain is ruled out once the execution is under way, if such pain would ensure that the execution was completed. We need not decide the merits of this contention, but only whether the argument is time-barred under Cooey II.
It may be that Getsy’s argument creates an issue “related” to his “core complaints,” and thus falls within the exception created by the express language of Cooey II itself. But whatever the meaning of Cooey II on this point, it is beyond doubt that a challenge to the amended protocol falls within § 2244(d)(1)(D), since the new May 2009 protocol provides a new “factual predicate” that could not “have been discovered through the exercise of due diligence” pri- or to its passage. To state the problem more clearly, imagine that a defendant is sentenced to death in 1996. In 2001, the State adopts lethal injection as its sole method of execution. In 2009, it decides to cut costs by halving the dosage of each *326drug that it uses in its three-dug protocol, and further decides that the drugs will be administered by first-year medical students who perform the procedure for free. Imagine further that the several people who are executed under this new protocol suffer a prolonged and excruciating death. If our defendant then seeks to challenge this newly amended protocol, it would seem absurd to read Cooey II to require a court to find that the challenge became time-barred in 2003, despite the fact that the challenge specifically attacks changes that were made in 2009. The merits of Getsy’s challenge may be weaker than those laid out in this hypothetical. But the statute-of-limitations question is the same. When a prisoner challenges a change in a State’s method of execution, that change provides a new “factual predicate” that resets the two-year statute of limitations. As all of the opinions in Baze make clear, the constitutionality of a particular method of execution will depend on the specific factual details of its administration. Thus, a change to those details resets the accrual date for a constitutional challenge. See Walker v. Epps, 550 F.3d 407, 414-15 (5th Cir.2008) (“Of course, in the event a state changes its execution protocol after a death-row inmate’s conviction has become final, the limitations period will necessarily accrue on the date that protocol becomes effective.”).
Getsy’s execution, which is currently scheduled for August 18th, should be temporarily stayed pending the District Court’s resolution of the merits of Getsy’s claim under the standard set out in Baze.
Exhibit “B”
No. 03-3200
Getsy v. Mitchell
. Subsection (B) is not relevant to this case, and therefore is elided.