                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                             F I L E D
                      In the                                 June 23, 2004
 United States Court of Appeals                         Charles R. Fulbruge III
            for the Fifth Circuit                               Clerk
                _______________

                  No. 04-70020
                _______________




              DAVID RAY HARRIS,

                                     Plaintiff-Appellant,

                     VERSUS

                 DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
      CORRECTIONAL INSTITUTIONS DIVISION;
                 NEILL HODGES,
                     WARDEN;
          UNKNOWN EXECUTIONERS,

                                     Defendants-Appellees,



          _________________________

    Appeal from the United States District Court
        for the Southern District of Texas
                 m 04-CV-1514
         _________________________
Before SMITH, DENNIS, AND CLEMENT,                        which the State intends to carry out a sentence
  Circuit Judges.                                         of death. Such claims were thought to chal-
                                                          lenge the sentence itself, and as a result, could
PER CURIAM:*                                              be raised only in a § 2254 habeas petition. Cf.
                                                          Preiser v. Rodriquez, 411 U.S. 475, 489
    David Harris appeals the dismissal of his             (1973).
suit, brought under 42 U.S.C. § 1983,
challenging the manner in which the State of                  Nelson, 124 S. Ct. at 2122, refutes that in-
Texas intends to carry-out his execution by               terpretation of Gomez, inasmuch as Nelson
lethal injection on the scheduled date of June            states that the Court “ha[s] not yet had
30, 2004. The district court, relying on Mar-             occasion to consider whether civil rights suits
tinez v. Tex. Ct. of Crim. Appeals, 292 F.3d              seeking to enjoin the use of a particular meth-
417, 421 (5th Cir. 2002), construed the                   od of executionSSe.g. lethal injection or elec-
complaint as a successive habeas corpus peti-             trocutionSSfall within the core of federal ha-
tion brought under 28 U.S.C. § 2254 and                   beas corpus or, rather, whether they are
dismissed it for failure to seek this court’s au-         properly viewed as challenges to the
thorization to file it. Cf. 28 U.S.C. § 2244-             conditions of a condemned inmate’s death
(b)(3)(A). Agreeing with Harris that Nelson v.            sentence.” Although Nelson leaves unsettled
Campbell, 124 S. Ct. 2117 (2004), is a change             “the difficult question of how to categorize
in the law that undermines the basis for the              method-of-execution claims generally,” id. at
district court’s decision, we reverse and                 2123-24, it recognizes that some such claims
remand for further proceedings.                           may be brought under § 1983 if they are
                                                          sufficiently narrow in scope. See id. at 2123-
   The district court’s reliance on Martinez              25 (analyzing the claim by “focusing attention
was well placed at the time it dismissed                  on whether petitioner’s challenge . . . would
Harris’s complaint. In Martinez, 292 F.3d at              necessarily prevent Alabama from carrying out
421, and several cases adhering to it,1 we                its execution”).
interpreted Gomez v. United States Dist. Ct.,
503 U.S. 653 (1992) (per curiam), as standing                Nelson therefore overrules the categorical
for the proposition that a death row inmate               rule that was announced in Martinez, 292 F.3d
may not use § 1983 to challenge the manner in             at 421, and relied upon by the district court in
                                                          this case. In its place, Nelson institutes a more
                                                          probing standard that seeks to determine
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-       whether the complaint crosses the line between
termined that this opinion should not be published        (1) method-of-execution claims that call into
and is not precedent except under the limited cir-        question only the manner and means of
cumstances set forth in 5TH CIR. R. 47.5.4.               execution (and thus may be brought under
   1
     Hines v. Johnson, No. 03-21173, 83 Fed.
                                                          § 1983) and (2) claims that call into question
Appx. 592 (5th Cir.) (per curiam), cert. denied sub       the validity of the execution itself (and thus
nom. Zimmerman v. Johnson, 124 S. Ct. 1502                sound only in habeas). Id. at 2123-24.
(2004); Bruce v. Johnson, No. 04-70001 (5th Cir.
2004) (per curiam) (unpublished); Panetti v. Dret-           The State argues that Nelson is distinguish-
ke, No. 04-70002 (5th Cir. 2004) (per curiam)             able, and that even if it is not, the district
(unpublished).

                                                      2
court’s dismissal can be upheld on several al-         ter is REMANDED for further proceedings.2
ternative grounds. Because the court issued            The mandate shall issue forthwith.
its ruling before the state had an opportunity
to file responsive pleadings, all of its
arguments are newly raised on appeal. “We
consider an issue raised for the first time on
appeal only if it presents a purely legal
question and failure to address it would result
in grave injustice.” Kelly v. Foti, 77 F.3d 819,
822 (5th Cir. 1996). No such injustice exists
here, because the state has ample opportunity
to urge its contentions on remand, id., if the
district court acts expeditiously, as we assume
it will.

    We therefore reverse and remand for
further proceedings in light of Nelson. We
express no opinion as to whether Harris’s
complaint falls within the permissible scope of
§ 1983 complaints recognized in Nelson, or
whether there is any merit to the state’s
alternative defenses, such as exhaustion.

    We do not stay Harris’s execution, and in
his brief in this appeal he specifies that he
“does not . . . seek a stay of his execution.”
As recognized in Nelson, 124 S. Ct. at 2125-
26, “the mere fact that an inmate states a cog-
nizable § 1983 claim does not warrant the en-
try of a stay as a matter of right.” There
remain a number of procedural issues, see id.
at 2126, the resolution of which should not re-
quire the entry of a stay. We do, however, re-
quest the district court to give emergency at-
tention to this matter and enter an appealable            2
order that will enable this court to resolve any             The parties have complied with our order for
                                                       expedited briefing, under which Harris would be
pending matters in advance of the date set for
                                                       entitled to file a reply brief by June 25. In light of
execution.                                             the need for quick remand, and further because
                                                       Harris is receiving the relief he requests on appeal
   The judgment is REVERSED, and this mat-             (reversal and remand), the termination of briefing
                                                       at this time is warranted. See also 5TH CIR. R.
                                                       31.4.4 (stating that “[t]he court assumes that the
                                                       parties have had ample opportunity to present their
                                                       arguments in their initial briefs”).

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