VIRGINIA:

      In the Supreme Court of Virginia held at the Supreme Court
Building in the City of Richmond on Tuesday, the 30th day of March,
2004.

Dennis Mitchell Orbe,                                      Petitioner,

  against               Record No. 040597

William Page True, Warden,
  Sussex I State Prison,                                   Respondent.


            Upon a Petition for a Writ of Habeas Corpus

     Petitioner's motion to proceed in forma pauperis is granted.

     Upon consideration of the “Second Petition for a Writ of

Habeas Corpus” and “Motion for Expedited Consideration and

Application for a Stay of Execution” filed March 22, 2004, the

respondent's motion to dismiss, and the petitioner’s opposition to

motion to dismiss and reply in support of the motion for stay of

execution, the Court is of the opinion that the respondent’s motion

should be granted, petitioner’s stay of execution should not issue,

and the writ should not issue.

     Petitioner alleges that his execution by lethal injection,

“without first changing to a more humane protocol,” will violate

his rights to due process and constitute cruel and unusual

punishment under the Virginia and United States Constitutions.

However, Petitioner acknowledges in his petition that "this is not

an appropriate claim to raise in a petition for a writ of habeas

corpus," and that the "instant petition is prophylactic.    Orbe has
filed it to provide an alternative mechanism for relief."    He

further states:

     The reason why this is not an appropriate habeas corpus claim
     is that Orbe does not challenge either the fact or duration of
     his imprisonment, does not challenge his death sentence, and
     does not seek a determination that he is entitled to immediate
     or speedier release. These are the distinguishing hallmarks
     of a habeas claim, as the Court spelled out in Preiser v.
     Rodriguez, 411 U.S. 475 (1973). Virginia law similarly
     confines the scope of habeas corpus actions.

     We agree with Orbe. Consequently, we hold that this Court does

not have original jurisdiction to consider his petition.

Accordingly, the petition is dismissed.


                              A Copy,

                                    Teste:



                                          Patricia H. Krueger, Clerk
