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 first habeas petition. It is only upon the conclusion of habeas review and when *315the 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 ITs 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, — U.S. -, 128 S.Ct. 1520, 1531-32, 170 L.Ed.2d 420 (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 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, — U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (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 *316F.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, — U.S. -, 128 S.Ct. 1475, 170 L.Ed.2d 299 (2008), or, April 8, 2009, the date the Ohio Supreme Court set his execution date. State v. Getsy, 121 Ohio St.3d 1437, 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 of suffering” with regard to those changes.2 Such a deficiency, however, is of little import 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 ease 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, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (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.
. 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 matter” could support a claim that would warrant a reset of the accrual date.