                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


JAMES EDWARD REID,                    
              Petitioner-Appellant,
                v.
GENE M. JOHNSON, Director,
Commonwealth of Virginia
Department of Corrections; GEORGE             No. 03-7916
M. HINKLE, Warden, Greensville
Correctional Center; WILLIAM PAGE
TRUE, Warden, Sussex I State
Prison,
             Respondents-Appellees.
                                      
          Appeal from the United States District Court
        for the Eastern District of Virginia, at Richmond.
                James R. Spencer, District Judge.
                         (CA-03-1039-3)

                 Submitted: December 16, 2003

                     Decided: August 2, 2004

       Before WILKINS, Chief Judge, and GREGORY and
                   SHEDD, Circuit Judges.



Reversed and remanded by unpublished per curiam opinion.


                           COUNSEL

James Clinton Turk, Jr., Clifford Lee Harrison, STONE, HARRISON
& TURK, P.C., Radford, Virginia, Robert Edward Lee, Jr., VIR-
2                            REID v. JOHNSON
GINIA CAPITAL REPRESENTATION RESOURCE CENTER,
Charlottesville, Virginia, Marie Frances Donnelly, MIDWEST CEN-
TER FOR JUSTICE, Evanston, Illinois, for Appellant. Katherine P.
Baldwin, OFFICE OF THE ATTORNEY GENERAL OF VIR-
GINIA, Richmond, Virginia, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).



                               OPINION

PER CURIAM:

   Three days before his scheduled execution for the murder of Annie
Lester, James Edward Reid filed an action pursuant to 42 U.S.C.A.
§ 1983 (West 2003) asserting that the means by which the Common-
wealth of Virginia ("the State") intended to carry out his execution
constituted cruel and unusual punishment in violation of the Eighth
Amendment. The district court dismissed the action, reasoning that
the complaint was properly construed as a petition for a writ of habeas
corpus for which Reid, having already sought habeas relief in the fed-
eral courts, was required to obtain the permission of this court. See
28 U.S.C.A. § 2244(b)(3) (West Supp. 2004). Reid now appeals this
order, and for the reasons set forth below, we reverse and remand for
further proceedings.1

    1
   It is not clear whether Reid must obtain a certificate of appealability
(COA), see 28 U.S.C.A. § 2253(c) (West Supp. 2004), before we may
consider his appeal. Cf. Reid v. Angelone, 369 F.3d 363, 367-70 (4th Cir.
2004) (holding that a habeas petitioner was required to obtain a COA in
order to appeal the denial of relief pursuant to Federal Rule of Civil Pro-
cedure 60(b)). Assuming without deciding that a COA is necessary here,
we grant one.
                           REID v. JOHNSON                            3
                                   I.

   Reid pleaded guilty to Lester’s murder and was sentenced to death.
The Virginia Supreme Court rejected Reid’s claims on appeal, see
Reid v. Commonwealth, 506 S.E.2d 787 (Va. 1998), and his petition
for habeas relief. Reid thereafter filed a petition for a writ of habeas
corpus in federal district court. That court denied relief, and we
affirmed. See Reid v. True, 349 F.3d 788 (4th Cir.), cert. denied, 124
S. Ct. 979 (2003).

   The State scheduled Reid’s execution for December 18, 2003. On
December 15, Reid filed his § 1983 claim asserting, upon information
and belief, that the State intended to employ a combination of three
drugs—sodium thiopental or sodium pentothal, pancuronium bromide
or Pavulon, and potassium chloride—in executing him. Reid alleged
that this combination of chemicals would cause him "to consciously
suffer an excruciatingly painful and protracted death." Compl. at 4.
Specifically, Reid alleged that the sodium pentothal, intended to ren-
der him unconscious during the execution, would wear off or be neu-
tralized by the Pavulon before the execution was complete, causing
Reid to experience the painful effects of the potassium chloride used
to bring about cardiac arrest; Reid’s agony would be masked, how-
ever, by the paralyzing effect of the Pavulon. Reid sought "a perma-
nent injunction barring Defendants from executing Plaintiff in the
manner they currently intend." Id. at 5.

   The district court dismissed, reasoning that "[a] ‘challenge to the
manner of execution is a challenge seeking to interfere with the sen-
tence itself, and thus, is properly construed as a petition for habeas
corpus.’" Reid v. Johnson, No. 3:03cv1039, slip op. at 2 (E.D. Va.
Dec. 16, 2003) (quoting In re Sapp, 118 F.3d 460, 462 (6th Cir.
1997)). Reid thereafter filed a notice of appeal and sought a stay of
execution from this court. We granted Reid a stay of execution pend-
ing appeal and held this appeal in abeyance pending a decision by the
United States Supreme Court in Nelson v. Campbell, 124 S. Ct. 2117
(2004).

                                  II.

  42 U.S.C.A. § 1983 and 28 U.S.C.A. § 2254 (West 1994 & Supp.
2004) are two different means of seeking redress for unconstitutional
4                           REID v. JOHNSON
action by state officials. See Heck v. Humphrey, 512 U.S. 477, 480
(1994). Section 2254 "is the exclusive remedy for a state prisoner
who challenges the fact or duration of his confinement and seeks
immediate or speedier release, even though such a claim may come
within the literal terms of § 1983." Id. at 481. An action styled as a
§ 1983 claim must be treated as a petition for habeas relief under
§ 2254 when success on the claim would necessarily imply the inva-
lidity of the plaintiff’s conviction or sentence. See Edwards v. Bali-
sok, 520 U.S. 641, 645-46 (1997).

   The Supreme Court applied these principles in Nelson. Three days
before his scheduled execution, Nelson filed a § 1983 action alleging
that the state of Alabama intended to use a "cut-down" procedure to
obtain venous access to execute him by lethal injection and claiming
that use of this procedure would violate the Eighth Amendment. See
Nelson, 124 S. Ct. at 2120. Nelson sought to permanently enjoin Ala-
bama from using the cut-down procedure. See id. at 2121. The
Supreme Court held that Nelson had stated a cognizable claim under
§ 1983 because he challenged only the use of the cut-down procedure,
not lethal injection generally. See id. at 2123. The Court observed that
Nelson’s challenge to the use of the cut-down procedure might consti-
tute a challenge to the execution itself "[i]f as a legal matter the cut-
down were a statutorily mandated part of the lethal injection protocol,
or if as a factual matter petitioner were unable or unwilling to concede
acceptable alternatives for gaining venous access." Id. at 2123-24.

   In light of Nelson, we conclude that Reid has stated a cognizable
claim under § 1983. Like Nelson, Reid does not assert that lethal
injection generally is an unconstitutional method of execution.
Rather, he asserts only that the particular protocol the State plans to
use is impermissible; he acknowledges that other protocols would
pass constitutional muster. See Pl.-Appellant’s Reply to Def.’s Mot.
to Vacate as Moot the Order of Dec. 17, 2003 at 10-11. Additionally,
it appears that the execution protocol at issue here is a matter of
Department of Corrections policy, not statute or regulation. See Aff.
of Anthony M. Parker at 2. Under these circumstances, Reid’s chal-
lenge to the protocol does not implicate the validity of his death sen-
tence. See Nelson, 124 S. Ct. at 2123-24.

   As did the Supreme Court in Nelson, we note that Reid’s statement
of a cognizable § 1983 claim does not necessarily entitle him to relief.
                            REID v. JOHNSON                            5
The question remains whether Reid should be afforded preliminary
injunctive relief in order to pursue his § 1983 claim. See id. at 2125-
26 (noting that "the mere fact that an inmate states a cognizable
§ 1983 claim does not warrant the entry of a stay as a matter of
right"); Gomez v. United States Dist. Ct., 503 U.S. 653, 654 (1992)
(per curiam) (describing equitable considerations pertinent to an
award of preliminary injunctive relief in an eleventh-hour attempt to
stay execution). The propriety of a stay pending litigation of Reid’s
claim is a matter best addressed by the district court in the first
instance.

                                  III.

   For the reasons set forth above, we reverse and remand for further
proceedings consistent with this opinion. The stay of execution will
remain in effect for ten days after the issuance of our mandate or until
Reid reinstates his request for preliminary injunctive relief in the dis-
trict court, whichever occurs first.2

                                         REVERSED AND REMANDED
  2
   The State’s motion to vacate stay is denied.
