dissenting:
I respectfully dissent. Because I conclude Nguyen’s current application for habeas relief, which asserts a claim of incompetency to be executed, is not a “second or successive” application for purposes of 28 U.S.C. § 2244(b), I would allow Nguyen to proceed on his application in the district court without authorization from this court.
In Ford v. Wainwright, 477 U.S. 399, 409-10, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), the Supreme Court held the Eighth Amendment prohibits a state from executing a prisoner who is insane. When a prisoner asserts a competency-to-be-executed claim (i.e., a Ford claim), a reviewing court can properly consider it only when the prisoner’s execution is “imminent.” Stewart v. Martinez-Villareal, - U.S.-, 118 S.Ct. 1618, 1622, 140 L.Ed.2d 849 (l998)(Martinez-Villareal II). If execution is not imminent, such a claim is typically dismissed on ripeness grounds. See id. at 1620.
Prior to enactment of the AEDPA and its accompanying amendments to 28 U.S.C. § 2244, a state prisoner facing a sentence of death was typically allowed to file two applications for federal habeas relief. In the first application, the prisoner would attack the constitutionality of his conviction and/or sentence. After resolution of that application and subsequent establishment by the state of an execution date, the prisoner could assert a ripe Ford claim. Although the then-existing provisions of § 2244 contained certain restrictions on second or successive habeas applications, the prisoner’s Ford claim was typically allowed to proceed under the “ends of justice” exception set forth in § 2244(b). See Martinez-Villareal v. Stewart, 118 F.3d 628, 635 (9th Cir.1997)(Nelson, J., concurring) (Martinez-Villareal I); Fearance v. Scott, 56 F.3d 633, 640 (5th Cir.1995).
With the enactment of the AEDPA came new, tougher restrictions on what Congress termed “second or successive” habeas applications. Under these restrictions, a prisoner is prohibited from filing a “second or successive” habeas application unless he or she can satisfy one of two new “gateways” created by Congress. See 28 U.S.C. § 2244(b)(2)(A) & (BXprisoner must demonstrate either reliance on new rule of constitutional law or discovery of facts that would demonstrate he or she would not have been found guilty).
The problem with the AEDPA’s new restrictions is they create a serious dilemma for prisoners seeking to pursue Ford claims. Because the filing of a federal habeas application typically stays any scheduled execution, and because a Ford claim does not ripen until execution is imminent, a Ford claim will rarely, if ever, be resolved in a first federal habeas application filed by a prisoner. See Martinez-Villareal I, 118 F.3d at 630. Thus, a Ford claim asserted in a first federal habe-as application will inevitably be dismissed as premature. However, neither of the two new “gateways” set forth in the AEDPA for obtaining review of a “second or successive” petition applies to Ford claims.
In May of this year, the Supreme Court provided a partial solution to this dilemma in Martinez-Villareal II. The Court held when a prisoner asserts a Ford claim and the claim is dismissed as premature, the prisoner may reassert that claim at a later date without being subject to the restrictions on “second or successive” applications for habeas relief established by the AEDPA. Unfortunately, the Supreme Court in Martinez-Vil-*603lareal II acknowledged, but chose not to address, the question we face here, i.e., whether the AEDPA’s restrictions on “second or successive” applications apply “where a prisoner raises a Ford claim for the first time in a petition filed after the federal courts have, already rejected the prisoner’s initial habeas application.” 118 S.Ct. at 1622 n. *.
To answer the question, it is helpful to first review the procedural history of Nguyen’s efforts at seeking federal habeas relief. Nguyen’s first federal habeas petition was filed on. July 15, 1994, approximately twenty-one months prior to enactment of the AED-PA. Although it is apparent from that petition that Nguyen’s counsel was concerned about Nguyen’s mental health, the petition did not specifically assert a Ford claim. Presumably, in light of the then-existing rules of procedure for federal habeas petitions, Nguyen’s counsel envisioned raising a Ford claim at a later date (i.e., after the initial habeas application was resolved and the State of Oklahoma had established a new execution date), and was not concerned about the possibility of being barred from fully litigating such a claim. At the time the AEDPA was enacted (April 24, 1996), Nguyen’s federal habeas petition was still pending in the district court. Although arguably could have moved to amend the petition to include a Ford claim, it is apparent two roadblocks existed. First, the Ford claim remained unripe since the original execution had been stayed and no new execution date had been set. Second, Nguyen may-have feared that amending his petition to include a Ford claim would result in dismissal of this entire petition on exhaustion grounds since the Ford claim had not been presented to the Oklahoma state court. See Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)(district court must dismiss habeas petitions containing both exhausted and unex-hausted claims). In any event, Nguyen did not amend his petition to include a Ford claim, and the district court entered judgment against Nguyen on his other claims on October 28, 1996. We affirmed the district court’s judgment approximately one year later. Nguyen v. Reynolds, 131 F.3d 1340 (10th Cir.1997), cert. denied, — U.S. --, 119 S.Ct. 128, 142 L.Ed.2d 103 (1998).
Although Nguyen’s current application for habeas relief is, if viewed literally, a “second” application for relief, I am not convinced it should be deemed as such for purposes of applying the AEDPA’s new restrictions. The Supreme Court has described the AED-PA’s new restrictions as “a modified res judi-cata rule.” Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). In situations where a prisoner seeks to challenge only the legality of his conviction or sentence, application of this “modified res judicata rule” make perfect sense. In such situations, the federal courts can fully adjudicate all such claims at one time, and should not be required to entertain successive attacks of this type (unless, of course, the prisoner can satisfy one of the two new “gateways”). Where, however, a prisoner seeks to pursue a Ford claim, the federal courts typically cannot resolve the claim in the initial habeas application, and instead must wait until after the prisoner’s attacks on the legality of his conviction and sentence are fully resolved and an execution warrant has been issued. In such situations, application of the AEDPA’s “modified res judicata rule” makes little sense. Indeed, preventing prisoner like Nguyen from asserting Ford claims does nothing to prevent the “abuse of the writ” about which Congress was apparently concerned when it enacted the AEDPA. Moreover, there appears to be little practical difference between the situation at issue in Martinez-Villareal II, where the prisoner reasserted a Ford claim after having his initial attempt dismissed as premature, and the situation here, where the prisoner asserts his Ford claim for the first time when it is actually ripe.
It is true that two of our sister circuits have, in similar situations, treated habeas applications asserting Ford claims as “second or successive” applications for purposes of § 2244(b). See In re Davis, 121 F.3d 952, 955-56 (5th Cir.1997); In re Medina, 109 F.3d 1556, 1564-65 (11th Cir.1997). However, I am persuaded by neither. In the first place, both opinions were issued prior to, and without the benefit of, the Supreme Court’s *604decision in Martinez-Villareal II. Although the Supreme Court did not directly address the question we now face, I am not convinced the court would agree with the position taken by the Fifth and Eleventh Circuits. In any event, I cannot accept those courts’ construction of the “second or successive” language of § 2244(b), because I believe it effectively results in an unconstitutional suspension of the writ of habeas corpus with respect to Ford claims. See Martinez-Villareal I, 118 F.3d at 631-32, 35. Although the Fifth and Eleventh Circuits (as does the majority of this ease) suggest a prisoner can obtain federal court review of his Ford claim by filing either a petition for certiorari from a state supreme court decision or an original habeas application with the Supreme Court, both of those avenues are, in my opinion, suspect. See id. at 631 n. 3 (“We reject the suggestion that direct review by the Supreme court of the state court’s competency proceedings suffices to sustain § 2244 against constitutional attack.”), and Id. at 632 n. 4.
To avoid this constitutional problem, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988)(“where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.”), I believe the proper course is to construe the term “second or successive habeas corpus application,” as used in the newly-amended 28 U.S.C. § 2244(b), as encompassing only those habe-as applications that assert claims that were ripe at the time of the petitioner’s original habeas application. Such an interpretation would allow a state prisoner on death row to first attack the legality of the conviction and sentence and then, after the state establishes an execution date, file a Ford claim. This would be generally consistent with the two “gateways” provided by Congress in § 2244(b)(2)(A) and (B), both of which allow a prisoner to assert a claim in a “second or successive” petition that was not available at the time of the original petition. Moreover, this approach would ensure that a state prisoner has an opportunity for federal court review of all constitutional claims.
For these reasons, I would conclude Nguyen’s current application for habeas relief is not a “second or successive” application under § 2244(b), and that he should be allowed to proceed in district court without authorization from this court.