¶1dissenting.
¶2I vote to grant the stay. First I am not sure that § 1988 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.1998) (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.
¶3It 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.