¶1Alan D. Rose (Court-Appointed), Boston, MA, for Petitioner-Appellant.
¶2J. Clayton Crenshaw, Montgomery, AL, for Respondent-Appellee.
¶5Petitioner James Barney Hubbard, a death row inmate in the Alabama prison system, is scheduled to be executed on Thursday, August 5, 2004 at 6:00 p.m. CDT.1 On July 27, 2004, Petitioner filed with the district court an “Amended Petition for Writ of Habeas Corpus by a Person in State Custody under Sentence of Death,” and a “Motion for Stay of Execution.” The Amended Petition purported to amend Petitioner’s original petition (which the district court denied on February 3, 1998) and asked that the district court issue a writ of habeas corpus barring Petitioner’s execution “due to dementia and advanced age,” 74 and $ years.2 Petitioner represented to the district court that he has the right to amend his original petition3 without obtaining leave of this court pursuant to 28 U.S.C. § 2244(b)(3)(A). Petitioner acknowledged our holding in In re Provenzano, 215 F.3d 1233 (11th Cir.2000), which treats as a successive petition a claim that the Eighth Amendment bars the execution of an incompetent person,4 but said Nelson v. Campbell, — U.S. -, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) effectively overruled the holding.
¶6On July 28, 2004, the district court, agreeing with Respondent that Nelson is inapposite and, more importantly, that the Amended Petition was due to be dismissed because Petitioner had failed to obtain this court’s leave to file it pursuant to 28 U.S.C. § 2244(b)(3)(A), entered an order dismissing the Amended Petition without prejudice and denying Petitioner’s “Motion for Stay of Execution.” Two days later, the district court denied Petitioner’s application for the issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253(c) so that he could appeal the court’s order.
¶7*1247Petitioner now applies to this court for a certifícate of appealability so that he can appeal the district court’s decision dismissing his Amended Petition. (Petitioner does not seek leave of this court to file his Amended Petition as a successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A).) Petitioner also seeks a stay of execution pending our disposition of these proceedings.
¶8Section 2253(c) has no application here because the district court’s decision dismissing the Amended Petition is not “a final order in a habeas corpus proceeding” within the meaning of the statute. Rather, the decision is a final order dismissing the Amended Petition for lack of subject matter jurisdiction. We have jurisdiction to review the order pursuant to 28 U.S.C. § 1291.
¶9We agree with the district court that it lacked subject matter jurisdiction to entertain the Amended Petition, and that the court was obliged to dismiss it for that reason. Therefore, without issuing a certificate of appealability (because a certificate is unnecessary to permit us to review the district court’s order of dismissal), we affirm the court’s order denying the Amended Petition for lack of jurisdiction and deny Petitioner’s application for a stay of execution.
¶10SO ORDERED.
¶17dissenting:
¶18I agree with the majority that the district court order dismissing without prejudice for lack of subject matter jurisdiction Hubbard’s amended petition for a writ of habeas corpus is not a final order under 28 U.S.C. § 2253(c). I also agree that Hubbard has not sought leave from this court to file his amended petition as a successive petition under 28 U.S.C. § 2244(b)(3)(A). However, I disagree with the majority’s denial of Hubbard’s motion for a stay of execution in order to allow him time to present his claims through alternative channels.
¶19In Ford v. Wainwright, the Supreme Court unequivocally held that the execution of a person who is mentally incompetent constitutes cruel and unusual punishment and, thus, violates the Eighth Amendment. 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). In this case, Hubbard argues that the holding of Ford renders his execution, under the facts as they currently exist, unconstitutional. Hubbard is seeking a temporary stay of execution so that we may adjudicate the claim that his execution would violate the Eighth Amendment in light of his mental incompetence.
¶20Petitioners have a right under Ford to an evidentiary hearing to decide the merits of their competency claims once they have made a substantial threshold showing of incompetency.1 The Ford plurality declared that “in a habeas corpus proceeding, a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.” 477 U.S. at 410, 106 S.Ct. 2595. See also Coe v. Bell, 209 F.3d 815, 819 n. 1 (6th Cir.2000) (discussing Ford and noting that “five justices agreed that a fair hearing was required if a prisoner made a substantial threshold showing of incompetency to be executed.”). It is unclear to me based upon the record before us whether Alabama has afforded Hubbard the due process required under Ford. While the Alabama Supreme Court allowed Hubbard to obtain copies of his medical records and to be evaluated, it *1248rejected his request for an evidentiary hearing in a eonclusory one-sentence order.2 Given these facts, Alabama may not have accorded Hubbard the process to which he is entitled under Ford.
¶21Hubbard claims that he could not have raised his mental incompetency claim earlier on direct appeal or in his initial habeas petition because the conditions underlying that claim had not existed at a time when his execution was imminent. Under these circumstances, it is inappropriate to force Hubbard to file an application for a second or successive habeas petition without granting his request for a stay.3 Doing so would effectively foreclose us from reviewing Hubbard’s Ford claim despite the fact that Hubbard could not have brought this claim earlier.4
¶22I would also grant the stay because Hubbard could pursue his claim under 42 U.S.C. § 1983. In Nelson v. Campbell, — U.S. -, 124 S.Ct. 2117, 2123, 158 L.Ed.2d 924 (2004), the Supreme Court allowed a defendant to bring a § 1983 challenge to Alabama’s use of a gratuitous “cut-down” procedure, rejecting the state’s argument that such a claim was the functional equivalent of a second or successive habeas petition and thus barred by AED-PA. The Nelson Court determined that the petitioner’s claim was not within the “core” of federal habeas corpus law, because it did not challenge the “fact” or “validity” of the death sentence but rather challenged the particular method of execution without precluding Alabama’s imposition of an alternative, constitutionally permissible method. 124 S.Ct. at 2122, 2123. The Court addressed the merits of petitioner’s § 1983 claim and found that employing the cut-down procedure in the petitioner’s case would violate the Eighth Amendment.
¶23Here, Hubbard has come forward with evidence that he is in fact incompetent. If he is able to bear out this claim, that showing would not amount to a challenge to the “fact” or “validity” of his sentence because he is not arguing that there are no circumstances where Alabama could constitutionally impose execution. Unlike a standard habeas claim, Hubbard does not challenge the validity of his original trial and sentence or the ability of the state to sentence him to death. Rather, he argues *1249that circumstances have changed such that the state cannot impose his sentence consistent with the Constitution at this time. See also Coe, 209 F.3d at 819 (“A competency-to-be-executed claim only raises the issue of when a prisoner will be competent for execution and does not challenge the validity of the prisoner’s conviction or sentence.”) (citing Ford, 477 U.S. at 425, 106 S.Ct. 2595 (Powell, J., concurring)). Thus, Hubbard’s claim, like Nelson’s, falls “at the margins of habeas.” Nelson, 124 S.Ct. at 2124.
¶24For these reasons I would grant the request for a stay of execution.