concurring in part, dissenting in part, and concurring in the judgment.
I concur in the court’s judgment because I join Part II.B. of its opinion, which 'holds that a State does not violate the Eighth or Fourteenth Amendments by executing an inmate who has “regained competency through appropriate medical care.” Ante at 1027. But I disagree with Part II.A. of the opinion, which concludes that our jurisdiction to consider this issue is not barred by 28 U.S.C. § 2244(b) because the claim “had not arisen at the time of [Singleton’s] previous [habeas] petition.” Ante at 1027. Thus, I dissent in part.
Section 2244(b) became effective on April 24, 1996, sharply limiting the right of a state inmate to file a “second or successive” federal habeas petition. Section 2244(b)(1) provides that claims presented in a prior petition “shall be dismissed.” Claims not previously presented “shall be dismissed” unless they fall within one of two narrow exceptions set forth in § 2244(b)(2).4 And subsections 2244(b)(3)(A) and (C) provide that a second or successive petition may not be filed in the district court unless the court of appeals has authorized the filing after determining that the petitioner made a prima facie showing that satisfies these requirements. In this case, Charles Singleton’s prior federal habeas petition was dismissed on the merits. See Singleton v. Norris, 108 F.3d 872 (8th Cir.1997). As we did not authorize the filing of a new petition under § 2244(b), it is barred. Yet the court now evades the statute by concluding that Singleton’s new petition is not “second or successive” within the meaning of § 2244(b).
1. Before discussing the court’s failure to properly define the term “second or successive,” I note that the court does not properly apply its own restrictive definition. The claim here at issue — whether it is constitutional to execute an inmate who is competent only by reason of involuntary *1028medical treatment — was not only ripe, it was raised in Singleton’s prior federal ha-beas proceeding. Singleton raised a Ford v. Wainwright claim in his prior petition, and the district court held a competency hearing on that claim in May 1995:
The district court found that Singleton, who was voluntarily taking antipsychotic medication, was competent.... Although he raises the possibility that he may in the future have a claim of incompetency, Singleton concedes that he currently has no support for such a claim in view of his voluntary ingestion of anti-psychotic medication.
Singleton, 108 F.3d at 873. Whereas a Ford competency claim is fact-intensive, whether it is constitutional to execute an inmate who is competent only by reason of medical treatment — whether voluntarily or involuntarily administered — is an issue of law that was apparent to Singleton’s attorneys no later than the May 1995 competency hearing. This is confirmed by Singleton’s Opening Brief on this appeal, which stated (at page 16):
In 1993, when an execution date was set, [Singleton] filed a petition alleging, inter alia, that he was incompetent to be executed and that if he appeared to be competent, it was as a result of involuntary medication. At a hearing before Judge Eisele in 1995, however, Singleton testified that he was voluntarily taking antipsychotic medication.
Thus, Singleton presented and abandoned a ripe involuntary medication claim in a prior habeas petition that was dismissed on the merits. Even by the court’s own standard, his new petition is “second or successive,” and § 2244(b)(1) requires that the claim “shall be dismissed.”
2. The court construes the term “second or successive” in § 2244(b) as not applying if the second petition raises a claim “that had not arisen” at the time of the prior petition. The court relies on two cases, In re Cain, 137 F.3d 234 (5th Cir.1998), which involved an inmate’s loss of good time credits, and Crouch v. Norris, 251 F.3d 720 (8th Cir.2001), which challenged the denial of parole. Though Singleton unquestionably presents the issue in the context of a Ford-driven claim,5 the court inexplicably ignores prior decisions in which three of our sister circuits have expressly considered whether a Ford claim is second or successive within the meaning of § 2244(b).
The Fifth Circuit and the Eleventh Circuit have concluded that a Ford claim brought in a second habeas petition is subject to § 2244(b)’s limitations, even if the claim had not arisen when the first petition was denied on the merits. In re Davis, 121 F.3d 952, 954-56 (5th Cir.1997); In re Medina, 109 F.3d 1556, 1563-66 (11th Cir.1997), cert. denied, 520 U.S. 1151, 117 S.Ct. 1331, 137 L.Ed.2d 490 (1997). But in Martinez-Villareal v. Stewart, 118 F.3d 628, 629 (9th Cir.1997), the Ninth Circuit disagreed, holding “that § 2244’s prohibition on second or successive petitions does not apply to a petition that raises only a competency to be executed claim under Ford.”
The Supreme Court granted certiorari in Martinez-Villareal. The Court affirmed the Ninth Circuit, but on a much narrower ground, holding that when a claim is dismissed without prejudice as premature in an initial habeas petition, the petitioner may assert that claim in a later petition without satisfying one of the exceptions in § 2244(b)(2). “To hold otherwise would mean that a dismissal of a first habeas petition for technical procedural *1029reasons would bar the prisoner from ever obtaining federal habeas review.” Stewart v. Martinez-Villareal, 523 U.S. 637, 645, 118 S.Ct. 1618, 140 L.Ed.2d 849 (1998). The Court expressly left unresolved whether “a Ford claim [raised] for the first time in a petition filed after the federal courts have already rejected the prisoner’s initial habeas application .... would be a ‘second or successive habeas corpus application’ ” within the meaning of § 2244(b). Id. at 645, 118 S.Ct. 1618 n.*. Thus, the circuit split on the broader issue remains. This is our first opportunity to address it.
The Supreme Court again dealt with the meaning of “second or successive” in Slack v. McDaniel, 529 U.S. 473, 487, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Slack posed the question whether a petitioner whose first petition was dismissed without prejudice for failure to exhaust state court remedies under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), may return to federal court after exhausting all claims without having to satisfy the limitations in § 2244(b). Adhering to its analysis in Martinez-Villareal, the Court held that “[a] petition filed after a mixed petition has been dismissed under Rose v. Lundy before the district court adjudicated any claims ... is not a second or successive petition.”
Because Singleton’s prior habeas petition was dismissed on the merits, this case is not governed by the narrow holdings in Martinez-Villareal and Slack, where the Supreme Court declined to apply § 2244(b) to claims previously dismissed without prejudice as premature, or to petitions previously dismissed without prejudice as unexhausted. In Crouch v. Norris and in this case, our court adopts the far broader rule that § 2244(b) does not apply to any claim that could not have been raised in the state inmate’s prior petition. This rule is a partial judicial repeal of § 2244(b)(2)’s limitations on new claims in second or successive petitions. While I recognize that dicta in the Martinez-Villa-real and Slack opinions can be read as supporting this construction of the statute, I doubt whether the Supreme Court will be willing to construe § 2244(b) in so hostile a fashion, and I strongly believe it is not our proper function to do so. As I said in my dissent in Crouch, 251 F.3d at 726-27:
[Martinez-Villareal and Slack ] involved claims raised but not decided on the merits in the first habeas applications. In those situations, it was reasonable as a matter of statutory construction for the [Supreme] Court to look at prior law in determining whether the return to federal court when the claims ripened should be considered “second or successive” for purposes of the new statute. Here, on the other hand, there can be no question Crouch is seeking to file a “second or successive” petition raising entirely new claims, and therefore no reasonable basis in statutory construction to ignore the plain meaning of § 2244(b)(2).... It is not our prerogative as circuit judges to rewrite § 2244(b) because we would have legislated differently.
3. Given our decision in this case, Singleton’s Ford-driven claim is not likely to recur. But Ford competency claims are fact intensive, so the issue left open by the Supreme Court in Martinez-Villareal— whether a new Ford claim asserted on the eve of a petitioner’s execution is “second or successive” when a prior federal habeas petition has been denied on the merits — is likely to recur. In my view, this is a difficult question for a circuit court to decide without further guidance from the Supreme Court. On the one hand, I do not believe the Court will simply ignore the plain meaning of second or successive in § 2244(b), as our court does in this case. On the other hand, the ruling in Ford was *1030expressly based upon the state inmate’s competency at the time of execution. This timing factor led the Ninth Circuit in Martinez-Villareal to fear that the narrow gateways in § 2244(b) will “foreclose any federal review of a death row inmate’s competency to be executed.” 118 F.3d at 631.
Because Singleton raised and abandoned a ripe Ford-driven claim in his prior habeas proceeding, I need not resolve this difficult question. I note, however, there are far narrower alternatives than the broad rule our court now adopts, a rule which will frustrate the congressional intent to restrict second and successive ha-beas petitions in non-capital cases such as Cain and Crouch. First, the Supreme Court could adhere to Martinez-Villareal and limit the avoidance of § 2244(b) to petitioners whose Ford claims were dismissed as premature in an initial habeas petition. That would encourage petitioners with foreseeable competency issues to raise them early, while relegating all other Ford claimants to the Court’s original ha-beas jurisdiction. See Felker v. Turpin, 518 U.S. 651, 658-62, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Second, because the Court recognized in Ford that no State permits the execution of an incompetent, 477 U.S. at 408, 106 S.Ct. 2595, the Court could expand the Martinez-Villareal exception to § 2244(b) to include petitioners who assert new Ford claims that the state courts considered timely and resolved on the merits. That may be hard to square with the plain meaning of “second or successive,” but it is consistent with the exhaustion principles discussed in Martinez-Villareal, 523 U.S. at 644-45, 118 S.Ct. 1618. Third, the Court could expand the concept of “innocence of the death penalty,” see Sawyer v. Whitley, 505 U.S. 333, 348, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), to include Ford claims, thereby bringing such claims within the class of second or successive petitions permitted under § 2244(b)(2)(B). (No circuit court could construe the statute this way given the Supreme Court’s introductory statement in Martinez-Villareal that a Ford claim “does not fit within either of subsection (b)(2)’s exceptions.” 523 U.S. at 642, 118 S.Ct. 1618.)
. To satisfy § 2244(b)(2), petitioner must show that the claim relies on a new rule of constitutional law made retroactive by the Supreme Court, or that the factual predicate for the claim could not have been discovered previously and the facts underlying the claim, if proven, "would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.”
. I will refer to Singleton's claim as "Ford-driven" because the argument that it is unconstitutional to execute an involuntarily medicated inmate is obviously premised upon the constitutional ruling in Ford.