358 F.3d 655
Kevin COOPER, Plaintiff-Appellant,v.Richard A. RIMMER, Acting Director of the California Department of Corrections; Jeanne Woodford, Warden, San Quentin State Prison, San Quentin, California, Defendants-Appellees.
No. 04-99001.
United States Court of Appeals, Ninth Circuit.
Submitted February 8, 2004.*
Filed February 8, 2004.

David T. Alexander, George A. Yuhas, and Lisa Marie Schull, Orrick, Herrington, & Sutcliffe LLP, San Francisco, California, for the petitioner-appellant.
Holly D. Wilkens, Deputy Attorney General, San Diego, California, for the respondents-appellees.
Appeal from the United States District Court for the Northern District of California; Jeremy D. Fogel, District Judge, Presiding, D.C. No. CV-04-0436-JF.
Before: James R. BROWNING, RYMER, Pamela Ann and Rymer, and Ronald M. GOULD, Circuit Judges.
OPINION
PER CURIAM:


1
Kevin Cooper, a California death row inmate whose execution is scheduled for Tuesday, February 10, 2004 at 12:01 a.m., appeals the district court'sjustification for doing so (such as a material change in the law or factual circumstances or an exceptionally strong showing on the merits), the district court indicated that it should follow the Supreme Court's guidance. The court also observed that even though Cooper's action has the avowed purpose of addressing alleged deficiencies in the lethal injection protocol, the timing of Cooper's action suggests that an equally important purpose is to stay his execution to continue to pursue other claims.


3
On the merits, and apart from delay, the court found that Cooper had not met his burden of demonstrating either the likelihood of success on the merits or the existence of serious questions going to the merits. The court noted that every state and federal court to consider the question