                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3487
                                   ___________

Terrick Terrell Nooner,               *
                                      *
            Appellant,                *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Eastern District of Arkansas.
Larry Norris, Director, Arkansas      *
Department of Correction,             *
                                      *
            Appellee.                 *
                                 ___________

                             Submitted: June 13, 2007
                                Filed: August 24, 2007
                                 ___________

Before BYE, RILEY, and BENTON, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      Terrick Terrell Nooner (Nooner) appeals the district court’s denial of his
application for a writ of habeas corpus under 28 U.S.C. § 2254. We reverse the
dismissal of Nooner’s habeas application as a second or successive application and
remand for further proceedings.

I.    BACKGROUND
      On March 16, 1993, Nooner shot and killed Scot Stobaugh. A jury convicted
Nooner of capital-felony murder with aggravated robbery and theft of property as the
underlying felonies, and the jury returned a verdict of death by lethal injection.
Nooner appealed the conviction and sentence. The Supreme Court of Arkansas
affirmed. Nooner v. State (Nooner I), 907 S.W.2d 677, 680 (Ark. 1995). Nooner
filed a petition for post-conviction relief under Arkansas Rule of Criminal Procedure
37. The trial court denied relief and the Supreme Court of Arkansas affirmed on
November 18, 1999. Nooner v. State (Nooner II), 4 S.W.3d 497, 498 (Ark. 1999)
(Smith, J.).

        Nooner filed an application for a writ of habeas corpus on July 30, 1996, and
amended applications on August 14, 1996, and May 17, 2000. The district court
dismissed Nooner’s application, finding Nooner competent to withdraw his habeas
application and granting Nooner’s motion to withdraw his habeas application, and
alternatively, finding Nooner’s habeas claims to be without merit. On appeal, a panel
of this court, in a split decision, affirmed the denial of Nooner’s application. Nooner
v. Norris (Nooner III), 402 F.3d 801, 820 (8th Cir. 2005), cert. denied, 126 S. Ct. 2037
(2006). After the issuance of the panel opinion, Nooner filed a Motion for Order to
Allow Access to Appellant for Mental Health Evalulation with this court. The court
issued an order providing “[t]he court being without jurisdiction in the absence of a
pending proceeding, the motion . . . is denied without prejudice to [Nooner’s] right to
file a petition for habeas corpus in the district court.”

       On April 7, 2006, Nooner filed an application for a writ of habeas corpus with
the district court using the original case number seeking an order permitting Nooner
to undergo a complete mental health evaluation. Larry Norris (Norris), Director of the
Arkansas Department of Correction, had not allowed Nooner access to mental health
experts to obtain a mental health evaluation. On July 27, 2006, the district court
dismissed, without prejudice, Nooner’s application on grounds that Nooner’s
application was a second or successive application for purposes of 28 U.S.C.
§ 2244(b), which Nooner had filed without the authorization of the circuit court. This
appeal followed. We granted a certificate of appealability on two questions:
(1) whether Norris’s refusal to allow Nooner access to mental health experts for


                                          -2-
purposes of a mental health evaluation violated the Constitution, and (2) whether the
district court was correct in ruling that Nooner’s application was a second or
successive application under 28 U.S.C. § 2244(b).

       At the time of oral argument, the State of Arkansas had not yet set Nooner’s
execution date. After oral argument, the State of Arkansas set Nooner’s execution
date on September 18, 2007. Nooner filed a Motion for Stay of Execution, seeking
time to allow this court to decide Nooner’s appeal.

II.     DISCUSSION
        Because the second certified question concerns our jurisdiction, we consider it
first. E.g., Panetti v. Quarterman, 551 U.S. __, 127 S. Ct. 2842, 2852 (2007); see also
Rosado v. Wyman, 397 U.S. 397, 403 n.3 (1970) (noting “a court always has
jurisdiction to determine its own jurisdiction”). We review de novo the district court’s
conclusion Nooner’s instant application was a second or successive habeas
application. See Williams v. Norris, 461 F.3d 999, 1001 (8th Cir. 2006), petition for
cert. filed, __ U.S.L.W. __ (U.S. May 10, 2007) (No. 06-11260).

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L.
No. 104-132, 110 Stat. 1214, limits the availability of habeas relief. See 28 U.S.C.
§ 2244(b);1 Fry v. Pliler, 551 U.S. ___, 127 S. Ct. 2321, 2327 (2007). Before filing a


      1
       Title 28 U.S.C. § 2244(b)(2) creates a gatekeeping mechanism, which
provides:

            A claim presented in a second or successive habeas corpus
      application under section 2254 that was not presented in a prior
      application shall be dismissed unless—
                   (A) the applicant shows that the claim relies on a new
            rule of constitutional law, made retroactive to cases on
            collateral review by the Supreme Court, that was previously
            unavailable; or

                                          -3-
second or successive application, the applicant must “move in the appropriate court
of appeals for an order authorizing the district court to consider the application.” 28
U.S.C. § 2244(b)(3)(A).

       Nooner does not rely on the exceptions set forth in § 2244(b)(2). Nooner
instead relies on the Supreme Court’s decisions in Stewart v. Martinez-Villareal, 523
U.S. 637, 643 (1998), and Panetti, 127 S. Ct. at 2853. Nooner argues the instant
application is not a second or successive application because it does not challenge his
conviction and sentence, but rather the application challenges Norris’s denial of access
to mental health experts in Nooner’s effort to develop a claim under Atkins v.
Virginia, 536 U.S. 304, 321 (2002) (concluding the Eighth Amendment “places a
substantive restriction on the State’s power to take the life of a mentally retarded
offender,” (internal quotation marks omitted)) and Ford v. Wainwright, 477 U.S. 399,
409-10 (1986) (holding “the Eighth Amendment prohibits a State from carrying out
a sentence of death upon a prisoner who is insane”).2


                    (B) (i) the factual predicate for the claim could not
             have been discovered previously through the exercise of
             due diligence; and
                    (ii) the facts underlying the claim, if proven and
             viewed in light of the evidence as a whole, would be
             sufficient to establish by clear and convincing evidence
             that, but for constitutional error, no reasonable factfinder
             would have found the applicant guilty of the underlying
             offense.

See also Burton v. Stewart, 549 U.S. __, 127 S. Ct. 793, 796 (2007) (concluding a
habeas application filed after a previously adjudicated application was a second or
successive application, which had not been authorized by the appropriate court of
appeals, and thus the district court lacked jurisdiction to entertain it).
      2
       Because the parties have assumed an Atkins-based mental retardation claim
should be treated the same as a Ford-based incompetency claim, for purposes of this
case, we assume, without deciding, the two claims should be treated similarly.

                                          -4-
       In Martinez-Villareal, an applicant filed a habeas application alleging, among
other things, a Ford-based incompetency claim. Martinez-Villareal, 523 U.S. at 640.
The district court dismissed the Ford-based incompetency claim without prejudice,
because the state had not yet obtained a warrant for the applicant’s execution and the
application was premature. Id. at 640, 643. After the state obtained an execution
warrant, the applicant sought permission from the court of appeals to file a second or
successive application alleging the Ford claim. Id. at 640-41. The Supreme Court
held the applicant “was not required to get authorization to file a ‘second or
successive’ application before his Ford claim could be heard” because “[t]here was
only one application for habeas relief.” Id. at 643-44. The Court concluded the
applicant was entitled to a hearing on the merits of his Ford-based incompetency
claim, because the state issued a warrant for the applicant’s execution and the
applicant’s claim was “then unquestionably ripe.” Id. at 643, 646.

       In Panetti, the Supreme Court extended the holding of Martinez-Villareal.
Panetti, 127 S. Ct. at 2853. The applicant filed an initial habeas application, however,
the application did not include a Ford-based incompetency claim. Id. at 2849. After
the state trial court set an execution date, the applicant filed another habeas application
containing a Ford claim. Id. The Supreme Court noted it “has declined to interpret
‘second or successive’ as referring to all § 2254 applications filed second or
successively in time, even when the later filings address a state-court judgment
already challenged in a prior § 2254 application.” Id. at 2853. The Court observed
“Congress did not intend the provisions of AEDPA addressing ‘second or successive’
[applications] to govern a filing in the unusual posture presented here: a § 2254
application raising a Ford-based incompetency claim filed as soon as that claim is
ripe.” Id. In conclusion, the Court stated “[t]he statutory bar on ‘second or
successive’ applications does not apply to a Ford claim brought in an application filed
when the claim is first ripe.” Id. at 2855. After discussing the merits, the Court
reversed the denial of habeas relief. Id. at 2863.



                                           -5-
       In both Martinez-Villareal and Panetti, the Supreme Court held the statutory bar
on second or successive applications does not apply to Ford-based incompetency
claims filed after the state has obtained an execution warrant. Panetti, 127 S. Ct. at
2849, 2853; Martinez-Villareal, 523 U.S. at 640, 643-44. For the limited purpose of
the statutory bar on second or successive applications found in § 2244(b)(2), we
cannot think of any statutory reason why this holding cannot be extended to Ford-
based incompetency and Atkins-based mental retardation claims filed before the state
has obtained an execution warrant.

       Moreover, in both Martinez-Villareal and Panetti, the Supreme Court indicated
the setting of an execution date caused the applicants’ Ford-based incompetency
claims to become ripe. Panetti, 127 S. Ct. at 2852; Martinez-Villareal, 523 U.S. at
643. Here, Nooner filed the habeas application before the State of Arkansas had
obtained an execution warrant. That Nooner filed the habeas application before the
setting of an execution date is irrelevant to the ripeness of Nooner’s habeas application
because “it is the situation now rather than the situation at the time of the [d]istrict
[c]ourt’s decision that must govern.” Reg’l Rail Reorganization Act Cases, 419 U.S.
102, 140 (1974); see also Pub. Water Supply Dist. No. 8 of Clay County, Mo. v. City
of Kearney, Mo., 401 F.3d 930, 932 (8th Cir. 2005).

III.   CONCLUSION
       For the reasons discussed above, we reverse the district court’s dismissal of
Nooner’s habeas application as a second or successive application and remand for
further proceedings consistent with this opinion. Because the district court did not
reach the merits of the first certified question, we remand for further proceedings so
the district court can consider the matter in the first instance. Nooner’s Motion for
Stay of Execution is dismissed as moot, without prejudice to filing a motion for stay
of execution in the district court.




                                          -6-
BYE, Circuit Judge, concurring in the result.

       I agree the habeas petition Terrick Nooner filed in the district court was not a
second or successive petition, and Nooner did not require the authorization of the
circuit court before filing the petition in the district court. I therefore concur in the
result reached by the Court, but write separately because I do not agree the claim
brought in the petition ripened only after Arkansas set an execution date.

       The Court characterizes Nooner's claim as an Eighth Amendment claim brought
pursuant to Ford v. Wainwright, 477 U.S. 399 (1986), and Atkins v. Virginia, 536
U.S. 304 (2002). A fair reading of Nooner's petition, however, indicates the thrust of
his claim is based on the constitutional right-of-access to the courts, a claim which is
merely prefatory to his bringing a Ford or Atkins claim. Nooner claimed, as a
condition of his confinement, the Arkansas Department of Corrections was denying
him access to mental health professionals and such a denial violated his constitutional
right of access to the courts by impeding his ability to prepare a future Ford-based
incompetency claim or Atkins-based mental retardation claim when his execution date
was actually set. I believe a right-of-access claim ripens when the state places a
substantial impediment in the way of the future litigation a prisoner seeks to pursue,
so long as the prisoner shows the underlying claim itself is colorable. See Christopher
v. Harbury, 536 U.S. 403, 413-15 (2002) (discussing the distinction between a right-
of-access claim brought to remove a roadblock to future litigation, and the underlying
(future) claim itself, and indicating such a claim is viable when the prisoner shows the
underlying claim is "nonfrivolous" or "arguable.").

      I concur in the result.
                        ______________________________




                                          -7-
