Sixth Circuit splitting over challenges to Ohio's execution protocol

Yesterday the Sixth Circuit issued this opinion in Getsy v. Strickland that affirms the dismissal of a death row inmate's challenge to Ohio's lethal injection protocol as time-barred.  Here is part of the discussion from the opinion for the court, per Judge Gilman (with emphasis in the original):

So if Baze did not create a new constitutional right, what precisely did Baze accomplish?  The answer, we believe, is that Baze clarified the standards that should apply to the merits of Eighth Amendment protocol challenges. Justice Thomas acknowledged that Baze simply created a new “formulation of the governing standard” rather than an entirely new right. See Baze, 128 S. Ct. at 1556 (Thomas, J., concurring in the judgment) (emphasis added).

This raises the question of whether Baze’s freshly clarified standards trigger a new accrual date. We do not believe that they do....

In this case, Getsy’s constitutional claim is focused solely on Ohio’s particular application of the lethal-injection method of execution.  He contends that someone on the execution team might make a mistake in administering the drug cocktail and that he might suffer a painful death akin to torture as a result. Because his ability to assert these kinds of challenges was well established long before Baze, as conclusively shown by Getsy’s intervention in the Cooey II case in 2007, we are unpersuaded that Baze caused Getsy’s deadline to file his § 1983 claim to be reset.

Judge Moore concurs in the panle opinion, but the start of her concurrence reveals that she would like to see a different result:

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.

The third member of this panel, Judge Merritt, dissents but this opinion now merely reports that his "separate dissenting opinion ... will be forthcoming."  I suspect it will also provide an interesting read.