dissenting:
The majority holds that Nelson’s Eighth Amendment claim challenging the unique manner of his execution, filed under 42 U.S.C. § 1983, is the “functional equivalent” of a habeas petition, and is therefore subject to the requirements governing second or successive habeas petitions under 28 U.S.C. § 2244. In light of the clear authority indicating that Nelson’s claim should be construed exclusively under § 1983, I strongly disagree with the majority’s holding.
Nelson seeks only a temporary stay of execution until concerns regarding the manner of his execution are addressed.1
A complaint seeking § 1983 relief in the form of a temporary stay of execution *914is not automatically equivalent to a successive habeas petition. Before making the determination of whether such a stay should be considered a habeas petition or a civil rights action, the court must inquire into the fundamental question of whether the plaintiff is actually seeking to challenge either the fact of his conviction or the duration of his sentence-the touchstones of habeas relief.2 If the plaintiffs § 1988 complaint “would necessarily imply the invalidity of his conviction or sentence,” the complaint must be dismissed. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). On the contrary, “if the plaintiffs action ... even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.” Id. In this case, Nelson was sentenced to death by lethal injection, not by lethal injection subject to any painful secondary procedure that Alabama state prison officials deem appropriate. He thus challenges neither his conviction nor his sentence. Rather, he requests the opportunity to enforce his Eighth Amendment rights; an opportunity that, as noted by the district court, would be wholly absent if this action were deemed the equivalent of a second habeas petition.
Appellees assert that this case is controlled by this court’s decision in Fugate v. Dep’t of Com., 301 F.3d 1287 (11th Cir.2002) (per curiam). In Fugate, an inmate sought a stay of execution, alleging that the manner in which Georgia administered its lethal injections was cruel and unusual under the Eighth Amendment. We held that the district court lacked jurisdiction to consider Fugate’s claim because it was the functional equivalent of a second habeas petition, and he had not previously applied to this court for permission to file such a petition under § 2244(b)(3)(A). See Fugate, 301 F.3d at 1288. Although the facts in Fugate are similar to those in this case, Fugate does not control the question before us. Fugate was sentenced to death by lethal injection under Georgia law. By seeking a stay of execution on the basis of a challenge to Georgia’s method of administering its lethal injections, Fugate was, in effect, attempting to avoid his specific sentence. Therefore, the decision that Fu-gate’s claim was the “functional equivalent” of a successive habeas petition was reasonable.3 The same is true of our decisions in Hill v. Hopper, 112 F.3d 1088 (11th Cir.1997) (per curiam) (holding that an inmate’s constitutional challenge to *915electrocution as means of execution was the functional equivalent of a second habeas petition) and Felker v. Turpin, 101 F.3d 95 (11th Cir.1996) (per curiam). Here, however, Nelson is not seeking to avoid execution by lethal injection under Alabama law. The “cut down” procedure that is to be used in his execution is not within Alabama’s execution procedure, nor has it been reviewed to ensure that it passes muster under the Eighth Amendment. Nelson merely requests that a different, more humane procedure known as “percu-taneous central venous cannulation” be used to carry out his execution, rather than the outmoded and painful “cut down” procedure. Regardless of which procedure is used, Nelson will be executed by lethal injection in accordance with his sentence. However, with the implementation of the “cut down” procedure, Nelson’s Eighth Amendment rights may be compromised in the process.
The district court noted that the rulings of the Eleventh Circuit appear to make a distinction between cases in which a death row inmate’s execution is imminent and cases in which execution is not imminent. In Bradley v. Pryor, 305 F.3d 1287 (11th Cir.2002), which was decided within weeks of Fugate, we held that a death row inmate’s § 1983 action for production of DNA evidence was not a successive habeas petition because it “neither directly, nor by necessary implication, attacked] the validity of his conviction and sentence.” Bradley, 305 F.3d at 1288. In his concurrence, and without further explanation, Chief Judge Edmondson stressed that the fact that Bradley did not request a stay of his execution as part of his claim was an “important” part of his decision. Id. at 1292 (Edmondson, C.J., concurring).
However, I fail to see the relevance of a request for a stay of execution to the question of whether an action is the equivalent of a habeas petition. In Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932 (11th Cir.2001) (per curiam), we held that a death row inmate’s motion for a preliminary injunction to stay his execution pending an appeal in a clemency proceeding was equivalent to a second habeas petition. However, we did not hold that every motion for a stay of execution was tantamount to a petition for habeas relief. In fact, we stated in the opinion that “[w]e look to the kind of relief [the inmate] seeks from the federal courts” in determining whether a petitioner seeks habeas relief. Id. at 933. Since the inmate in Gilreath sought clemency, or relief from his penalty, it was clear that his petition for a stay of execution was for the purpose of attacking his sentence. Here, Nelson’s request for a stay has no bearing on his conviction or his sentence, nor will it ever. If his stay is granted, he will at most have a limited opportunity to pursue his Eighth Amendment claims. Whatever the outcome, Nelson will be executed.
Nelson asks not to be spared; he asks only that he be executed humanely in accordance with his constitutional rights. The bottom line in this case is that the outcome of Nelson’s petition has no effect on either his sentence or his conviction, and therefore cannot properly be construed under any circumstances as the equivalent to a subsequent habeas petition. Therefore, pursuant to Heck v. Humphrey, Nelson’s § 1983 action should be allowed to proceed. 512 U.S. at 487, 114 S.Ct. 2364. I respectfully dissent.
. The majority notes that Nelson filed his § 1983 claim only three days prior to his execution. However, the procedure at issue here had never before been implemented in Alabama and prison officials had to craft a *914special procedure to govern Nelson's execution. It is unclear at what point they finalized the procedure and notified Nelson of it. Even in light of the chance that Nelson seeks redress in the courts solely as a means of delaying the inevitable, the possibility of his only recently being notified of the procedure requires our caution.
. A court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (2003) (emphasis added). Here, Nelson does not make such a challenge.
. Nevertheless, I believe that, our decisions in Fugate and its prior related cases are questionable under the standards defining habeas actions. A challenge to the manner in which an inmate is executed, in general, is not necessarily a challenge to the inmate's sentence of death or his conviction. The inmate's execution will presumably proceed, either in the same manner or in a different manner, pending subsequent proceedings. An avenue for review of Eighth Amendment claims must remain available to those facing death at the hands of the state.