                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   July 22, 2004
                       _____________________
                                                         Charles R. Fulbruge III
                            No. 03-00042                         Clerk
                       _____________________


JAMES E. BILLIOT,

                                           Plaintiff - Petitioner,

                              versus

CHRISTOPHER B. EPPS, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                           Defendant - Respondent.

                      ---------------------
          Appeal from the United States District Court
            for the Southern District of Mississippi
                         (No. 86-CV-0549)
                      ---------------------


Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     James Billiot, who was found guilty of murder and sentenced to

death, is currently before this court seeking permission under 28

U.S.C. § 1292(b) to appeal the district court’s denial of his

federal habeas claims challenging his sentence. The district court

certified those issues for interlocutory appeal, under § 1292(b),

and retained jurisdiction over Billiot’s claim under Ford v.

Wainwright, 477 U.S. 399 (1986), that he is insane and incompetent

to be executed.


     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
       We ordered the parties to submit supplemental briefing on

jurisdictional matters, addressing:        (1) whether this court has

jurisdiction under 28 U.S.C. § 2253(a) to review claims denied by

the district court in a non-final order certified by that court

under 28 U.S.C. § 1292(b); (2) whether the district court’s order

denying habeas relief on fewer than all of Billiot’s claims may and

should be construed as a final order under Fed. R. Civ. P. 54(b);

and (3) whether a certificate of appealability (“COA”) under 28

U.S.C. § 2253(c) is required for this court to review the merits of

Billiot’s claims certified by the district court for interlocutory

appeal under § 1292(b).

       The State contends in its supplemental brief that (1) the

district court’s order is not an appealable final judgment and

cannot be construed as a final judgment under Rule 54(b) because

the district court did not expressly determine that there is no

just reason for delay; and (2) a COA is required.         Billiot contends

that    we   should   construe   the   district     court’s    §    1292(b)

certification as a final judgment under Rule 54(b) and also as a

grant of a COA for each of the certified issues.

       Having reviewed the parties’ submissions and the applicable

law, we DENY Billiot’s petition for permission to appeal.               The

parties cited no authority for construing 28 U.S.C. § 2253(a)

(authorizing    appeals   from   “final”   orders    in    habeas   corpus

proceedings) to permit an appeal from an interlocutory order

certified under 28 U.S.C. § 1292(b).       Under the circumstances of

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this case, we decline to decide whether the district court’s §

1292(b) certification order can, or should be, construed as a final

judgment under Fed. R. Civ. P. 54(b), or as a certificate of

appealability under 28 U.S.C. § 2253(c). The district court denied

relief on all of Billiot’s claims except his Ford claim that he is

presently incompetent to be executed.               Because an execution date

has not been scheduled and Billiot’s execution is not imminent, his

Ford claim is premature.     Although the Ford claim had to be raised

in Billiot’s first federal habeas petition so that it will not be

barred as   successive   once     the       claim   becomes   ripe,   under   our

precedent such claims are subject to dismissal without prejudice.

See Patterson v. Dretke, 370 F.3d 480 (5th Cir. 2004) (addressing

ripe Ford claim raised in subsequent habeas action after claim was

dismissed without prejudice in prior habeas proceeding); Patterson

v. Cockrell, No. 01-40447 (5th Cir. May 23, 2003) (unpublished)

(dismissing without prejudice Ford claim where execution was not

imminent); Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45

(1998) (Ford claim raised for second time in subsequent federal

habeas petition, when it is ripe because the execution is imminent,

is not “second or successive” within the meaning of 28 U.S.C. §

2244 when   claim   raised   in   first       federal   habeas   petition     was

dismissed without prejudice as unripe).              In the light of the fact

that the unripe Ford claim is the only obstacle to a final judgment

as to all of the claims in this case, it is neither necessary nor



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prudent for us to address the difficult jurisdictional issues

presented in this case.

                          PETITION FOR PERMISSION TO APPEAL DENIED.1




     1
        Now that we have denied the petition for permission to
appeal, the district court is free to dismiss without prejudice the
Ford claim, and to enter final judgment in this case.      At such
time, an appeal to this court will be available to any aggrieved
party, provided that the requirements of 28 U.S.C. § 2253(c) are
satisfied.

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