                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            JUN 8 2004
                                TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk


ROBERT LEROY BRYAN,

       Appellant,

v.
                                                          No. 04-6190
MIKE MULLIN, Warden, Oklahoma
State Penitentiary and RON J. WARD,
Director, Oklahoma Department of
Corrections,

       Appellee.




                                      ORDER


Before KELLY, HENRY, and MURPHY, Circuit Judges.



      For the second time in the last five days, this court has before it a last-

minute request for a stay of execution filed by Robert Leroy Bryan. For the

second time in the last five days, this court concludes that Bryan is not entitled to

a stay of execution.

      Bryan is a convicted murderer; he is scheduled to be executed by the state

of Oklahoma at 6:00 p.m. today, June 8, 2004. At approximately 8:00 a.m. this

morning, Bryan filed a complaint in the United States District Court for the
District of Oklahoma. In that complaint, Bryan asserted that he is incompetent

and that his execution by the state of Oklahoma would violate the Eighth and

Fourteenth Amendments. See Ford v. Wainwright, 477 U.S. 399, 410 (1986)

(“The Eighth Amendment prohibits the State from inflicting the penalty of death

upon a prisoner who is insane.”). Bryan further asserted that he was entitled to

seek an injunction barring his execution in federal district court pursuant to the

provisions of 42 U.S.C. § 1983. The district court dismissed Bryan’s complaint

and denied his request for a stay of execution. According to the district court,

Bryan had presented “no indication of the likelihood he will succeed on the

merits.” Dist. Ct. Order at 3. The district court further concluded that the

evidence Bryan relies on in support of his Ford claim “provides little to support

his claim of insanity. In fact, both [prison] reports state Plaintiff was aware of

his upcoming execution and its date, and further, that he has an understanding of

the procedural posture of his case and the activities of his counsel.” Id.

      This court concludes that Bryan’s § 1983 complaint is, in actuality, a

second or successive 28 U.S.C. § 2254 habeas corpus petition. Thus, the district

court lacked jurisdiction over the petition. 28 U.S.C. § 2244(b)(3)(A). We,

therefore, vacate the district court’s order denying Bryan’s complaint on the

merits. This court treats Bryan’s appeal as an implied request to file a second or

successive § 2254 petition. Because Bryan has not made a prima facie showing


                                          -2-
that his Ford claim satisfies the requirements of § 2244(b)(2), this court denies

his request to file a second or successive § 2254 habeas petition and denies his

request for a stay of execution.

      Although Bryan asserts that he is entitled to proceed with his Ford claim in

a 28 U.S.C. § 1983 action, he has not cited a single case indicating that § 1983 is

the proper vehicle to litigate a Ford claim. Instead, Bryan relies on the Supreme

Court’s recent decision in Nelson v. Campbell, No. 03-6821, slip op. at 5-7

(2004). In Nelson, the Supreme Court held that the plaintiff could challenge a

“cut-down” procedure Alabama officials planned to use to effectuate the

execution of the plaintiff. Id. In Nelson, however, the Court was careful to note

that the plaintiff’s challenge was narrowly directed to a particular method of

effectuating the lethal injection of the plaintiff. Id. at 7 (“But petitioner has been

careful throughout these proceedings, in his complaint and at oral argument, to

assert that the cut-down, as well as the warden’s refusal to provide reliable

information regarding the cut-down protocol, are wholly unnecessary to gaining

venous access. Petitioner has alleged alternatives that, if they had been used,

would have allowed the State to proceed with the execution as scheduled.”).

Because Bryan is challenging the fact of his execution, as opposed to the narrow

method in which his execution will be effectuated as in Nelson, he must proceed




                                          -3-
under § 2254. See generally, e.g., Nguyen v. Gibson, 162 F.3d 600 (10th Cir.

1998) (reviewing Ford claim under § 2254).

      It is likewise clear that Bryan’s attempt to raise a Ford claim at this late

date is subject to the provisions of § 2244(b) restricting the filing of second or

successive § 2254 habeas petitions. Bryan has previously filed a § 2254 habeas

petition. That § 2254 habeas petition did not contain a Ford claim. Under these

circumstances, this court has held that Bryan’s subsequently filed Ford claim

must be treated as a second or successive habeas application. Nguyen, 162 F.3d

at 601. But see id. at 602-04 (Briscoe, J., dissenting) (asserting that the

provisions of § 2244(b) are not applicable to a Ford claim because those

provisions only apply to a claim that could have been raised in a previous § 2254

habeas petition and because Ford claims do not become ripe until an execution is

imminent). Thus, to be entitled to raise his Ford claim before the district court in

a second § 2254 habeas petition, Bryan must satisfy the gate keeping requirements

of § 2244(b).

      The AEDPA strictly limits the filing of second or successive § 2254 habeas

petitions. According to § 2244(b),

            (1) A claim presented in a second or successive habeas corpus
      application under section 2254 that was presented in a prior
      application shall be dismissed.
            (2) 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—

                                          -4-
                    (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
                    (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.

28 U.S.C. § 2244(b)(1), (2). This court may authorize the filing of a second or

successive § 2254 petition “only if [we] determine[] that the application makes a

prima facie showing that the application satisfies the requirements of” §

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

      Bryan cannot satisfy the requirements of § 2244(b)(2)(A) because the

Supreme Court decided Ford in 1986. Nguyen, 162 F.3d at 601. Nor can Bryan

meet the requirements of § 2244(b)(2)(B). 1 First, in light of Bryan’s well-

documented history of mental illness, there is simply no question that the factual

predicates of Bryan’s Ford claim could have previously been discovered and


      1
       That is assuming, of course, that a petitioner can challenge his death
sentence under the provisions of § 2244(b)(2)(B). See LaFevers v. Gibson, 238
F.3d 1263, 1267 (10th Cir. 2001) (noting that there is a circuit split on this
question and declining to decide whether such challenges are cognizable under §
2244(b)(2)(B) because the claim would fail on the merits). As was true in
LaFevers, this court need not resolve that difficult question because even
assuming such a claim is available, it fails on the merits.

                                         -5-
presented to this court through the exercise of due diligence. 28 U.S.C. §

2244(b)(2)(B)(i). For that reason alone, Bryan has failed to make a prima facie

case that his Ford claim satisfies the requirements of § 2244(b). Furthermore, the

letter submitted by Dr. Kathie Ward, a psychologist with the Oklahoma

Department of Corrections, to Warden Mike Mullin, does not alter this court’s

conclusion that Bryan’s Ford claim could, through the exercise of due diligence,

have been raised in Bryan’s first habeas petition. The letter from Dr. Ward, to the

extent it does reflect upon Bryan’s detachment from reality, indicates nothing

more than what was contained in the record before this court on Bryan’s first

§ 2254 habeas petition. In any event, Dr. Ward’s letter—which simply indicates

that although Bryan understands the concept of execution, he believes he will be

exonerated rather than executed—is simply insufficient to justify an evidentiary

hearing on present incompetence to be executed. Accordingly, Bryan also fails to

satisfy the requirements of § 2244(b)(2)(B)(ii), no matter how those provisions

are construed to apply to a Ford claim.

      Because Bryan has failed to satisfy the requirements of § 2244(b) this court

DENIES his implied request to file a second or successive habeas petition and

DENIES his request for a stay of execution. It should be noted, however, that

even if it were a closer question whether Bryan had made a prima facie showing

that he satisfies the requirements of § 2244(b)(2), which it is most certainly not,


                                          -6-
this court would still deny his request for a stay of execution. Bryan’s last-minute

filing, under the facts of this case, is a clear attempt to manipulate the federal

courts into staying his execution without a real opportunity to delve into the

merits of the case. See Nelson, No. 03-6821, slip. op. at 12 (“A stay is an

equitable remedy and equity must take into consideration the State’s strong

interest in proceeding with its judgment and attempts at manipulation. Thus,

before granting a stay, a district court must consider not only the likelihood of

success on the merits and the relative harms to the parties, but also the extent to

which the inmate has delayed unnecessarily in bringing the claim. Given the

State’s significant interest in enforcing its criminal judgments, there is a strong

equitable presumption against the grant of a stay where a claim could have been

brought at such a time as to allow consideration of the merits without requiring

entry of a stay.” (quotations, citations, and alterations omitted)).

                                                ENTERED FOR THE COURT



                                                Michael R. Murphy
                                                Circuit Judge




                                          -7-
No. 04-6190, Bryan v. Mullin

Henry, Circuit Judge, dissenting.



      I vote to grant the stay. First I am not sure that § 1983 relief is unavailable.

However, even if we must proceed under § 2244, I would still grant the stay. In

Nguyen v. Gibson, 162 F.3d 600 (10th Cir. 2004) (per curiam), we held that this is

a "second or successive petition" under 28 U.S.C. § 2244. I believe the evidence

suggests the strong possibility of decline in Mr. Bryan's condition. Thus, this new

evidence satisfies § 2244. I also believe Judge Briscoe's dissenting approach is

correct and this case would meet that standard as well.

      It is discouraging that counsel waited until this late date to present this

claim, and it is also discouraging the prison psychologist is not aware of the

standards of legal competency and presented inconsistent evaluations of Mr.

Bryan. Given the magnitude of the interest at stake, I reluctantly conclude that a

stay should be granted to determine Mr. Bryan's competency.




                                         -8-
