The Sixth Circuit this morning vacated the stay of execution granted by the District Court to Ohio murderer Kenneth Biros. The per curiam opinion in the case of Cooey v. Strickland, No. 09-4300, is here. Judges Siler, Gibbons, and Sutton were on the panel. No dissent.

As to the merits, the district court's stay order must be vacated because any challenge to Ohio's three-drug execution protocol is now moot.

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There is no basis in the record or for that matter in common sense for assuming that the State will do anything other than what it has told us in court filings and what it has told the public at large: it has changed its execution protocol, and it intends to apply the substantially modified protocol to Biros.

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One final point deserves mention. In granting a stay of execution, the district court based its reasoning on concerns related to the old procedure. Because the old procedure will not be utilized on Biros, no basis exists for continuing the stay previously in effect. Whether a stay is warranted under the new protocol is not before us at this time. Should Biros bring a new challenge on this ground, the district court and we can consider whether he has met the requirements for granting a stay, including the requirement of establishing a likelihood of success on the merits. See id. at 1537; Nelson v. Campbell, 541 U.S. 637, 649 (2004).