                        UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT

                            _____________________

                                 No. 97-00312
                            _____________________

                                  In re: DAVIS,

                                                                         Movant.

_________________________________________________________________

        Motion to reopen and reconsider original motion
           for leave, pursuant to 28 U.S.C. § 2244(b),
   to file a successive application for writ of habeas corpus
                in the United States District Court
                 for the Western District of Texas
_________________________________________________________________
                          August 27, 1997

Before KING, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

      The State of Texas has scheduled the execution of James Carl

Lee   Davis   for   9    September    1997.      Pursuant    to   28   U.S.C.   §

2244(b)(3),    Davis      seeks    leave    to   file   a   successive   habeas

application in the district court, in order to assert a claim that,

under Ford v. Wainwright, 477 U.S. 399, 409-10 (1986) (“Eighth

Amendment prohibits a State from carrying out a sentence of death

upon a prisoner who is insane”), he is incompetent to be executed.

We DENY the motion.

                                       I.

      In 1985, Davis was convicted of capital murder and sentenced

to death.     See Davis v. Scott, 51 F.3d 457, 459 (5th Cir. 1995).

The Texas Court of Criminal Appeals affirmed the conviction and

sentence, Davis v. State, 782 S.W.2d 211 (Tex. Crim. App. 1989);


                                      - 1 -
and the United States Supreme Court denied certiorari.                  Davis v.

Texas, 495 U.S. 940 (1990).          Davis’ application for state habeas

relief was denied.      See Davis, 51 F.3d at 459.              Davis sought

federal habeas relief in 1992, and the district court granted it.

Our court reversed, Davis v. Scott, 51 F.3d 457 (5th Cir. 1995);

and the Supreme Court denied certiorari.          Davis v. Scott, ___ U.S.

___, 116 S. Ct. 525 (1995).

     In December 1995, Davis filed in the state trial court a

motion for a competency hearing and appointment of a psychiatric

expert to   determine      his    competency,   and   a   motion   to    declare

unconstitutional TEX. CODE CRIM. P. art. 11.071 (requirements for

consideration of successive state habeas applications).             The trial

court forwarded the motions to the Texas Court of Criminal Appeals;

in December 1996, that court rejected the constitutional challenge

and found that Davis did not meet the prerequisites for filing a

successive state habeas application.            Ex parte Davis, 947 S.W.2d

216 (Tex. Crim. App. 1996).        The Court of Criminal Appeals did not

address Davis’ motion for a competency hearing and for appointment

of a psychiatric expert.         Davis did not seek Supreme Court review.

     In June 1997, Davis moved, pursuant to 28 U.S.C. § 2244(b),

for permission to file a successive federal habeas application,

asserting that, under Ford v. Wainwright, he is incompetent to be

executed.    Our   court    denied    the    motion   without   prejudice     as

premature, because Davis’ execution had not been scheduled.                  The

instant motion for reconsideration was filed after execution was

scheduled for 9 September.


                                     - 2 -
                                II.

     It goes without saying that, although Davis’ Ford claim has

not been raised before in district court, he seeks leave to present

it in a second federal habeas application.         Pursuant to the

amendments to the habeas statutes resulting from the Anti-Terrorism

and Effective Death Penalty Act (AEDPA), a habeas applicant must

obtain an order from a court of appeals authorizing the district

court to consider such a second or successive application.          28

U.S.C. § 2244(b)(3)(A).   And, we may authorize the filing of such

an application “only if [we] determine[] that [it] makes a prima

facie showing that the application satisfies the requirements of

[28 U.S.C. § 2244(b)(1) and (2)]”.     28 U.S.C. § 2244(b)(3)(C).

     Pursuant to § 2244(b)(1), “[a] claim presented in a second or

successive habeas ... application under section 2254 that was

presented in a prior application shall be dismissed.”      (Emphasis

added.)   Again, this Ford claim was not presented in a prior

application.

     New claims, such as the one in issue, presented in a second or

successive federal application by state prisoners are addressed by

§ 2244(b)(2).   It provides:

               (2) A claim presented in a second or
          successive   habeas  ...   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 -
                     (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.

(Emphasis added.)

     Only two circuits appear to have considered the applicability

of § 2244(b) to Ford claims.   In In re Medina, 109 F.3d 1556 (11th

Cir. 1997), the Eleventh Circuit denied leave to file a second

habeas application, explaining that the movant could not satisfy §

2244(b)(2)(A), because Ford is not a new rule of constitutional

law, and that he could not satisfy § 2244(b)(2)(B), because the

factual predicate for the claim had nothing to do with his guilt or

innocence of the underlying offense.    Id. at 1564-65.   The court

decided that, “although the provisions of § 2244(b), as amended,

operate to foreclose review of competency to be executed claims in

second habeas applications, federal court consideration of such

claims is not entirely foreclosed”: the provisions of § 2244(b) do

not restrict the Supreme Court’s original habeas authority to

consider competency claims, see Felker v. Turpin, ___ U.S. ___, 116

S. Ct. 2333 (1996); and federal review may also be obtained through

certiorari review of the state court competency proceedings.    109

F.3d at 1564.



                               - 4 -
       In Martinez-Villareal v. Stewart, ___ F.3d ___, 1997 WL 351258

(9th Cir. June 23, 1997), the movant had presented a Ford claim in

his first habeas application. The district court had dismissed the

claim without prejudice as premature, but granted relief on other

grounds.      The Ninth Circuit had reversed the grant of relief; and,

on remand, Martinez-Villareal had moved to reopen the first habeas

proceeding.         The district court held that, under AEDPA, it did not

have jurisdiction to entertain the Ford claim.                      The Ninth Circuit

reversed, holding that the movant’s Ford claim was not subject to

the restrictions imposed by § 2244(b).

       The Ninth Circuit noted that a Ford claim will always be

premature if asserted in a first habeas application, either because

no execution date has been scheduled, or because of the automatic

stay provision applicable, under certain circumstances, to first

habeas applications, see 28 U.S.C. § 2262.                        The court explained

that    a    Ford     claim   cannot    be     raised   in    a    successive    habeas

application:         if the claim was raised in a previous application, §

2244(b)(1) requires dismissal; and if the claim is to be raised for

the first time in a second application, as here, the movant cannot

make    the    required       prima    facie    showing      under    either    subpart

(b)(2)(A), because the rule of constitutional law upon which the

claim is based was announced in Ford in 1986 and is therefore not

“new”, or under subpart (b)(2)(B), because the factual predicate

for    the    claim    does    not    establish    guilt     or    innocence    of   the

underlying offense.            Postulating, pursuant to Felker, that the

Supreme Court would consider itself bound by the restrictions of


                                         - 5 -
subparts (b)(2)(A) and (B), the court concluded that § 2244(b)

presented      a    “serious   constitutional      problem”    because     a   state

prisoner’s Ford claim could never be heard by any federal court.

1997 WL 351258, at *3-*4.

     To avoid this perceived constitutional problem, the Ninth

Circuit decided that § 2244 does not apply to a Ford claim that has

been dismissed as premature in a first habeas application.                     Under

the Ninth Circuit’s “narrow” holding,

               a competency claim must be raised in a first
               habeas petition, whereupon it also must be
               dismissed as premature due to the automatic
               stay that issues when a first petition is
               filed. Once the state issues a second warrant
               of execution and the state court considers the
               now-ripe competency claim, a federal court may
               hear that claim—and only that claim—because it
               was originally dismissed as premature and
               therefore falls outside of the rubric of
               “second or successive” petitions.

1997 WL 351258, at *6.

     Were we to adopt the rule of Martinez, it would not help

Davis.   Unlike the movant there, whose Ford claim was presented in

his first federal habeas application and dismissed as premature,

Davis    did       not   present   a   Ford     claim   in   his   first   federal

application.        Instead, as discussed supra, he seeks to present his

Ford claim for the first time in a second habeas application.

Likewise, because this is a second application, Davis would not be

helped even were we to extend In re Gasery, 116 F.3d 1051 (5th Cir.

1997) (habeas application refiled after dismissal without prejudice

for failure         to   exhaust   state   remedies     is   neither   second    nor

successive), to Ford claims sought to be reasserted after dismissal


                                        - 6 -
without prejudice as premature when presented in a first, not—as

here—second, habeas application.

                                            A.

      Before addressing Davis’ contentions, we turn to the State’s

assertion that a Ford claim does not state a basis for federal

habeas relief because it does not seek to invalidate the conviction

or   sentence,    and      the    relief    sought       —   an   indefinite   stay   of

execution — is not available in a habeas proceeding.                     The language

of § 2254(a) seems to support this position:

              The Supreme Court, a Justice thereof, a
              circuit judge, or a district court shall
              entertain an application for a writ of habeas
              corpus in behalf of a person in custody
              pursuant to the judgment of a State court only
              on the ground that he is in custody in
              violation of the Constitution of laws or
              treaties of the United States.

(Emphasis added.)

      As the State correctly notes, a Ford claim (incompetency to be

executed) does not invalidate the conviction or sentence, and Davis

would not be entitled to be released from custody even if he were

found incompetent in this regard.                    Instead, “the only question

raised is not whether, but when, his execution may take place.”

Ford,   477    U.S.   at    425    (Powell,        J.,   concurring)    (emphasis     in

original).

      Nevertheless, we must reject this contention. Section 2254(a)

was not amended by AEDPA.           Ford is a habeas case, and our court has

considered Ford claims in habeas proceedings.                        See Fearance v.

Scott, 56 F.3d 633, 640 (5th Cir.) (pre-AEDPA case rejecting Ford

claim on the merits), cert. denied, ___ U.S. ___, 115 S. Ct. 2603

                                           - 7 -
(1995); Barnard v. Collins, 13 F.3d 871 (5th Cir.) (pre-AEDPA case

denying certificate of probable cause as to Ford claim), cert.

denied, 510 U.S. 1102 (1994).

                                         B.

     Accordingly, we turn to Davis’ contentions. Both Fearance and

Barnard noted that no federal case had denied relief on a Ford

claim on grounds of abuse of the writ; but, as noted, both were

pre-AEDPA cases. In short, the gatekeeping provisions of § 2244(b)

were not applicable.         See Fearance, 56 F.3d at 640; Barnard, 13

F.3d at 878.

                                         1.

     Davis     concedes   that      he   cannot    satisfy     §     2244(b)(2)(B)

(concerning guilt), but contends that subpart (b)(2)(A) can be

interpreted    to   permit    consideration       of   his    Ford    claim    in   a

successive    habeas   application.           Again,   that   subpart    requires

showing “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”.               (Emphasis added.)

     Davis maintains that Ford applies retroactively and is “solely

applicable” to cases involving death penalty defendants whose

mental   states     prevent    an    understanding       of    the    nature    and

consequences of the pending execution. He asserts that, therefore,

Ford is a “new rule of constitutional law” because it is applicable

for the “first time” only when both the execution date is imminent

and the petitioner is incompetent.             He states also that Ford was

“previously unavailable” to him because a Ford claim is premature


                                      - 8 -
until   both   an    execution      date    is       set    and   the    applicant      is

incompetent.

     Davis’ proposed interpretation is at odds with the plain

language of subpart (b)(2)(A).          Needless to say, the 1986 decision

in Ford is not a new rule of constitutional law.                     The legal basis

of Davis’ claim has been available since at least 1986; it is only

the factual basis of the claim that was previously unavailable.

Accordingly, Davis cannot satisfy the criteria of § 2244(b)(2)(A).

                                        2.

     Davis maintains that we should interpret § 2244(b) in the

light of the fact that its purpose is to prevent abuse of the writ

in federal habeas cases.         He asserts that his Ford claim does not

constitute such an abuse, because he could not have raised the

claim previously, inasmuch as it was unavailable until he was both

incompetent and his execution scheduled.                   Accordingly, he contends

that Medina is distinguishable because the movant failed to present

his Ford claim at the first available opportunity.                        Although we

agree that § 2244(b) is designed to prevent abuse of the writ, and

will assume that Davis is seeking to assert his Ford claim at the

first properly available opportunity, we cannot disregard the plain

wording   of   §    2244(b)    in   order       to    create      such   an    equitable

exception.

                                        3.

     Anticipating our holding, discussed supra, that his Ford claim

does not satisfy the criteria of § 2244(b)(2)(A), Davis contends

alternatively      that   §   2244(b)      is    unconstitutional,            because   it


                                      - 9 -
precludes consideration by a federal court of a mature Ford claim

presented for the first time.          See U.S. CONST., Art. I, § 9, cl. 2

(“The   Privilege   of   the    Writ    of     Habeas   Corpus    shall     not   be

suspended, unless when in Cases of Rebellion or Invasion the public

Safety may require it”).        We disagree, for the reasons stated by

the Eleventh Circuit in Medina, 109 F.3d at 1564.

     Assuming     arguendo     that    Ford    guarantees   a     federal    court

determination of a competency-to-be-executed claim, the relevant

provisions of AEDPA do not foreclose such review.                A federal court

determination of the issue can be sought through Supreme Court

review of the state court competency proceedings.                 As noted, the

state   court’s   opinion      did    not    address    Davis’    motion    for   a

competency hearing; Davis chose not to seek such review of that

decision.   Alternatively, the claim can be raised in an original

habeas application to the Supreme Court.

                                       III.

     For the foregoing reasons, leave to file a successive habeas

application is

                                                                 DENIED.




                                      - 10 -
