Tuan Anh Nguyen v. Gary L. Gibson, Warden of the Oklahoma State Penitentiary

PER CURIAM

On November 18,1998 petitioner filed with the district court an application for federal habeas relief, see 28 U.S.C. § 2254, alleging that he is incompetent to be executed. See Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). Petitioner also requested a stay of his execution, which is scheduled for December 10,1998. In light of the denial of a previous application for habe-as relief, see Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir.1997), cert. denied, — U.S. -, 119 S.Ct. 128, 142 L.Ed.2d 103 (1998), the district court, on November 25, 1998, transferred this matter to this court for a determination of whether petitioner should be authorized to file a second or successive habeas application under 28 U.S.C. § 2244(b)(3)(A). See Coleman v. United States, 106 F.3d 339, 341 (10th Cir.1997) (citing 28 U.S.C. § 1631).

We have reviewed petitioner’s habeas application, with the attached materials, the government’s response, and petitioner’s objections to the transfer of this action. We deny the government’s request that we not consider petitioner’s objections.

The issue presented by this case, at the outset, is whether petitioner’s Ford claim should be treated as a second or successive federal habeas application. Petitioner asserts that, in light of the Supreme Court’s decision in Stewart v. Martinez-Villareal, — U.S. -, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998), it should not be treated as such. Martinez-Villareal, however, is distinguishable.

In that ease, the petitioner challenged his competency to be executed in his first federal habeas application considered on the merits. See id. at 1620. The district court dismissed this Ford claim as premature. See id. The Supreme Court held that the petitioner’s subsequent reassertion of his Ford claim would not be treated as a second or successive habeas application, see id. at 1621-22, because in fact “[tjhere was only one application for habeas relief, and the District Court ... should have ruled[ ] on each claim at the time it became ripe,” id. at 1621. The Supreme Court, in Martinez-Villareal, specifically did not address the issue presented here — whether a federal habeas court should treat a Ford claim, asserted for the first time after a previous denial of federal habeas relief, as a second or successive habeas application. See id. at 1622 n.*; see also In re Davis, 121 F.3d 952, 955 (5th Cir.1997) (distinguishing MaHinez-Villareal in circumstances similar to this case).

In this case, the record reflects that on May 4,1994, the Oklahoma Court of Criminal Appeals ordered a July 19, 1994 execution date. Petitioner filed his first § 2254 action and application for stay of execution on July 15, 1994, without making any reference to a Ford claim, despite the fact that all of the operative facts were known at the time he filed his first ■ petition. The district court stayed the execution that same day.

Under these circumstances, we agree with both the Fifth and Eleventh Circuits that petitioner’s subsequently filed Ford claim should be treated as a “second or successive” habeas application. See In re Davis, 121 F.3d at 953; In re Medina, 109 F.3d 1556, 1561, 1563-64 (11th Cir.1997); cf. Ceja v. Stewart, 134 F.3d 1368, 1369 (9th Cir.1998)(AEDPA required petitioner to obtain permission to file second or successive habeas petition to assert claims challenging manner of execution and length of confinement on death row, where federal courts had previously denied habeas relief). Petitioner, therefore, must obtain this court’s authorization under § 2244(b) to file this habeas claim in district court. We reiterate that this case does not present a situation where the grounds supporting the Ford claim first came to light after the filing of the initial application.

Section 2244(b) permits this court to authorize a habeas applicant to file a habeas claim, for the first time, in a second or successive habeas application, only if that claim is based upon “a new rule of constitutional law, made retroactive to eases on collateral review by the Supreme Court,” or based upon a “factual predicate” that “could not have been discovered previously” and which, “if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that ... no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(A) & (B). Because the Supreme court decided in Ford in 1986, and because petitioner’s Ford claim either does not challenge the validity of the underlying capital conviction or does not rest upon evidence that could not have been discovered previously, petitioner cannot meet § 2244(b)(2)’s requirements for filing a second or successive habeas application. See In re Davis, 121 F.3d at 955-56; In re Medina, 109 F.3d at 1564-65.

Petitioner argues that precluding him from asserting his Ford claim in this second or successive habeas application amounts to an unconstitutional suspension of the writ of habeas corpus. Our holding, however, does not preclude federal consideration of his Ford claim and, therefore, does not suspend the writ. Petitioner may still obtain federal review by the United States Supreme Court, either through review of a state court’s determination of his competency, or through an original habeas proceeding filed with the Court. See In re Davis, 121 F.3d at 956; In re Medina, 109 F.3d at 1564. Further, although the warden has not acted under Oklahoma law to initiate a competency determination, see Okla. Stat. Ann. tit. 22, § 1005, petitioner may have available other judicial remedies.

We, therefore, must DENY petitioner’s request for leave to file a second or subsequent federal habeas application, see 28 U.S.C. § 2244(b)(3), and DENY petitioner’s request for an emergency stay of execution.