Lawrence REYNOLDS, Plaintiff-Appellant, v. Ted STRICKLAND, et al., Defendants-Appellees, 583 F.3d 956

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, 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 80, 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.