                       United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 97-4088
                                   ___________
Robert E. Williams,                     *
                                        *
            Plaintiff-Appellant,        *   Appeal from the United States
                                        *   District Court for the
     v.                                 *   District of Nebraska.
                                        *
Frank X. Hopkins, Individually          *
and in his capacity as Warden of        *
the Nebraska State Penitentiary,        *
                                        *
            Defendant-Appellee.
                                  ___________

                        Submitted:   November 28, 1997
                                      Filed:   November 28, 1997
                                  ___________

Before HANSEN, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
     Judges.
                            ___________

HANSEN, Circuit Judge.

      Robert E. Williams, a Nebraska prisoner sentenced to die by
electrocution on December 2, 1997, appeals the district court’s1 order
dismissing as frivolous his civil rights suit, which was filed pursuant to
42 U.S.C. § 1983 (1994).         Williams’ complaint seeks declaratory,
injunctive, and monetary relief, challenging the constitutionality of death
by electrocution in general and, more specifically, the constitutionality
of the




      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
particular method by which Nebraska allegedly administers the electrical
current for electrocutions. We affirm the judgment of the district court.

                                    I.

      Williams was apprehended after committing a string of violent acts in
1977. A Nebraska state court jury convicted him of two counts of first-
degree murder and one count of first-degree sexual assault. A panel of
three state trial judges sentenced Williams to death by electrocution for
each murder conviction and to an indeterminate sentence of imprisonment not
to exceed 25 years for the sexual assault conviction. The Supreme Court
of Nebraska upheld Williams’ convictions and sentences on direct appeal and
in post conviction proceedings. See State v. Williams, 287 N.W.2d 18 (Neb.
1979), cert. denied, 449 U.S. 891 (1980); State v. Williams, 352 N.W.2d 538
(Neb. 1984); State v. Williams, 358 N.W.2d 195 (Neb. 1984); State v.
Williams, 396 N.W.2d 114 (Neb. 1986).

      In 1987, Williams filed his first application for a federal writ of
habeas corpus pursuant to 28 U.S.C. § 2254. In his amended petition filed
by appointed counsel (who was not his present counsel), Williams presented
the issue of whether death by electrocution is constitutional, but he later
abandoned the issue so it was never addressed by the district court. The
district court granted the writ as to one death sentence, concluding that
the sentence had been based in part on an unconstitutional aggravating
factor, and denied the writ as to the remaining death sentence.         See
Williams v. Clarke, 823 F. Supp. 1486 (D. Neb. 1993) (subsequent history
omitted). On appeal to this court, Williams again raised in his brief the
issue of whether death by electrocution violates the Eighth Amendment's
prohibition of cruel and unusual punishment, but we declined to reach it
because Williams had abandoned the issue before the district court, and the
district court had not determined it. We affirmed the district court’s
denial of habeas corpus relief as to the murder conviction appealed. See




                                   -2-
Williams v. Clarke, 40 F.3d 1529, 1531, 1544 (8th Cir. 1994), cert. denied,
514 U.S. 1033 (1995).

      On the day of his scheduled execution in March 1995, Williams filed
a second federal habeas corpus action, asserting new evidence of alleged
juror misconduct.      The day before he had filed another state post
conviction relief action on the same basis. Williams voluntarily dismissed
his second federal habeas action pursuant to Rule of Civil Procedure
41(a)(1), see Williams v. Clarke, 82 F.3d 270, 272-73 (8th Cir. 1996),
after the Supreme Court of Nebraska granted Williams a stay of execution
and ordered an evidentiary hearing on the juror misconduct issue.
Ultimately, the state courts denied Williams’ post conviction action based
on alleged juror misconduct, see State v. Williams, 568 N.W.2d 246 (Neb.
1997) cert. denied, 97-6860, 1997 WL 732087 (U.S. Nov. 26, 1997), and the
instant death warrant issued.

      It is once again the eleventh hour for Mr.   Williams. He has now filed
this 42 U.S.C. § 1983 action, challenging           the constitutionality of
Nebraska’s statutory choice of carrying            out death sentences by
electrocution, and the constitutionality of the    particular method by which
Nebraska   is   alleged   to   administer   the     electrical  current   for
electrocutions. The district court dismissed       Williams’ § 1983 complaint
as legally frivolous. Williams appeals.

                                    II.

      Williams challenges the district court’s conclusion that his complaint
is legally frivolous.     A complaint “‘is frivolous where it lacks an
arguable basis either in law or in fact.’” Cokeley v. Endell, 27 F.3d 331,
332 (8th Cir. 1994) (quoting Neitzke v. Williams, 490 U.S. 319, 325
(1989)). The district court gave six reasons underlying its determination
that Williams’ complaint is frivolous, including that this § 1983 suit is
the functional equivalent of a successive habeas corpus petition, which was
improperly filed without first obtaining permission pursuant to 28 U.S.C.
§




                                    -3-
2244(b)(3)(A) and which asserts the same claim that Williams raised but
abandoned in his first habeas corpus complaint filed ten years ago.
Williams argues on appeal that this case is not subject to the habeas rules
barring a successive habeas complaint but is instead a valid § 1983
challenge to the method of execution, which he argues is a condition of his
confinement and not an attack on his sentence.

      The Eighth Amendment proscribes "punishments which are incompatible
with 'the evolving standards of decency that mark the progress of a
maturing society.'" Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quoting
Trop v. Dulles, 356 U.S. 86, 101 (1958)).          Claims challenging the
conditions of confinement or the method by which a sentence is being
carried out may be asserted through a § 1983 cause of action. However, a
state prisoner challenging the fact or duration of a sentence of
imprisonment and seeking immediate or speedier release has a federal remedy
through habeas corpus and cannot bring a claim under § 1983. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973); Otey v. Hopkins, 5 F.3d 1125, 1131
(8th Cir. 1993), cert. denied, 512 U.S. 1246 (1994).

      In Gomez v. United States District Court, 503 U.S. 653, 653 (1992),
the Supreme Court refused to consider an eleventh-hour § 1983 challenge to
a method of execution (death by cyanide gas), holding that the action was
“an obvious attempt to avoid the application of McCleskey v. Zant, 499 U.S.
467 (1991),” which would otherwise act to bar the condemned prisoner’s
successive complaint.    The Court further noted that even assuming the
petitioner could avoid the application of the restrictions on successive
habeas claims by labeling his action as a § 1983 claim, the Court would not
consider the merits. Id. The Court explained that the petitioner was
seeking an equitable remedy, regardless of the label attached to the claim.
The Court stated the following:

     Equity must take into consideration the State’s strong interest
     in proceeding with its judgment and [the petitioner’s] obvious
     attempt at




                                   -4-
     manipulation. This claim could have been brought more than a
     decade ago. There is no good reason for this abusive delay,
     which has been compounded by last-minute attempts to manipulate
     the judicial process.    A court may consider the last-minute
     nature of an application to stay execution in deciding whether
     to grant equitable relief.

Id. at 654.   See also Lonchar v. Thomas, 116 S. Ct. 1293, 1301 (1996)
(explaining Gomez as holding that the habeas rules do apply to a last
minute § 1983 method of execution claim) (citations omitted).

      In Williams’ case, though he challenges the method of execution and
asserts this is a § 1983 case, his last-minute request for equitable relief
seeks to stop or delay his execution. The Sixth and Eleventh Circuits have
considered similar cases in light of the Supreme Court’s decisions in Gomez
and Lonchar, and they each determined that a prisoner may not circumvent
the habeas rules restricting successive claims by filing a § 1983 claim to
challenge the method of execution.      The Sixth Circuit observed that a
“challenge to the manner of execution is a challenge seeking to interfere
with the sentence itself, and thus, is properly construed as a petition for
habeas corpus.” In re Sapp, 118 F.3d 460, 462 (6th Cir.), cert. denied 117
S.Ct. 2536 (1997).     Similarly, the Eleventh Circuit treated a § 1983
challenge to the method of execution as a second habeas petition and
concluded that the “[p]laintiff’s § 1983 claim is subject to the procedural
requirements for bringing a second or successive habeas claim.” Felker v.
Turpin, 101 F.3d 95, 96 (11th Cir.), cert. denied 117 S.Ct. 450 (1996).
We find the reasoning of these cases persuasive. Accordingly, we believe
that the district court correctly determined that Williams’ current
complaint is the functional equivalent of a successive habeas action,
regardless of its technical label.

      Treating Williams’ § 1983 claim as the functional equivalent of a
successive habeas action, we agree with the district court’s assessment
that Williams failed to request permission of this court pursuant to 28
U.S.C. § 2244(b)(3)(A) (1996) to file a successive habeas corpus
application. Thus, the district court’s alternative reasoning




                                   -5-
that it was without jurisdiction to consider Williams’ request for relief
is correct.    See In re Sapp, 118 F.3d at 464; Felker, 101 F.3d at 96.
Furthermore, even if he had requested permission from us to file a
successive habeas corpus application, the allegations of Williams’ claim
do not meet the statutory requirement that “the factual predicate for the
claim could not have been discovered previously through the exercise of due
diligence,” 28 U.S.C. § 2244(b)(2)(B)(i), and we would have been compelled
to deny him permission to file.

      Williams raised the general constitutional issue of whether death by
electrocution constitutes cruel and unusual punishment in his first federal
habeas complaint filed over a decade ago, but voluntarily abandoned the
issue. The factual predicate was available at that time but Williams chose
not to pursue it. Deliberate abandonment of a claim in a prior habeas
action disentitles a prisoner to habeas relief when he later raises the
same issue in a second habeas petition. McCleskey v. Zant, 499 U.S. 467,
489 (1991); Sanders v. United States, 373 U.S. 1, 18 (1963). Williams
contends that the basis for his specific challenge to the manner in which
the electrical current is allegedly administered by Nebraska was not
available until after Harold Lamont Otey was executed using four currents
of electricity on September 2, 1994, and that it was not ripe until the
present death warrant was issued on October 10, 1997. Williams claims that
the state statute provides that the electrocution must be administered in
one continuous current of electricity, not intermittent currents. See Neb.
Rev. Stat. § 29-2532 (1995) (providing that electrocution is to be
accomplished by “a current of electricity of sufficient intensity to cause
death”). Even assuming the factual predicate was not available until 1994,
Williams’ delay in bringing this claim is manipulative and abusive. This
claim was available in March 1995, and ripe on the date of Williams’ first
scheduled execution when he filed and then voluntarily dismissed his second
federal habeas complaint, yet he did not include the claim at that time,
nor does the record before us show that he included it in his state court
post conviction pleading filed at the same time. Only now, on the eve of
another scheduled execution date, has Williams offered this theory to the
federal courts. For these reasons, the habeas rules




                                   -6-
themselves and the equitable principles articulated in Gomez and Lonchar
bar Williams’ claims at this late hour regardless of whether his action is
considered a § 1983 claim or a successive habeas corpus application.

      Even absent the procedural roadblocks which preclude any relief for
him, the merits of Williams’ claim clearly lack an arguable basis in law.
The district court correctly noted that a constitutional challenge to death
by electrocution has never been successful, citing In re Kemmler, 136 U.S.
436, 443-44 (1890), and Felker, 101 F.3d at 97 (collecting cases). As the
Sixth Circuit stated in Sapp earlier this year:

           Electrocution has never been found to be cruel and unusual
     punishment by any American court. See, e.g., In re Kemmler, 136
     U.S. at 443-44; Ingram v. Ault, 50 F.3d 898 (11th Cir. 1995);
     Felker, 101 F.3d at 97; Porter [v. Wainwright], 805 F.2d [930,]
     943 n.15 [(11th Cir. 1986), cert. denied, 482 U.S. 918 (1987)];
     Glass v. Louisiana, 471 U.S. 1080 (1985) (Brennan, J.,
     dissenting from denial of certiorari) (“such claims have
     uniformly and summarily been rejected”).       No legislatively
     authorized method of execution in the United States is outlawed
     in any jurisdiction by any currently-effective court decision.
     [Gomez v.]Fierro, 117 S. Ct. [285,] 285 [(1986)]; Rupe v. Wood,
     863 F. Supp. 1307 (W.D. Wash. 1994), vacated as moot, 93 F.3d
     1434 (9th Cir. 1996). The very practice of electrocution has
     been upheld by other courts within the past year, and there is
     no argument even plausible that there are differences in the
     level of “evolving decency” among the different circuits or
     states of the union, or over the last very few years.

118 F.3d at 464.

      Williams’ claim that the warden intends to violate the Nebraska
execution statute by passing more than “a” current of electricity into his
body raises the potential of a violation of state law. Ordinarily, an
alleged violation of state law does not by itself state a claim redressable
by a § 1983 action. “Mere violation of a state statute does not




                                   -7-
infringe the federal Constitution.” Snowden v. Hughes, 321 U.S. 1, 11
(1944); Whisman v. Rinehart, 119 F.3d 1303, 1312 (8th Cir. 1997). Only
federal rights are “guarded and vindicated” by § 1983. Ebmeier v. Stump,
70 F.3d 1012, 1013 (8th Cir. 1995). To the extent that Williams asserts
that passing more than one current of electricity into his body to effect
his death is cruel and unusual punishment barred by the Eighth Amendment,
his claim is foreclosed by Louisiana ex rel. Francis v. Resweber, 329 U.S.
459, 463, 466 (1947), absent any suggestion of malevolence.       See also
Hamblen v. Dugger 748 F. Supp. 1498, 1503 (M.D. Fla. 1990). Here, Williams
makes no claim that the warden will maliciously pass more than one current
of electricity into him.

                                  III.

      For these reasons, the district court did not err by dismissing
Williams’ § 1983 complaint with prejudice.  Accordingly, we affirm the
judgment of the district court. Williams’ application for an injunction
staying his execution is denied as moot.

MORRIS SHEPPARD ARNOLD, Circuit Judge, concurring.
      I concur in all of the court's opinion except for that part which
discusses the merits of      Mr. Williams' constitutional challenge to
execution by electrocution found in the full paragraph on page 7, ante.

     A true copy.

           Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -8-
