Petitioner Lewis Williams filed this § 1983 action in the district court challenging the method of administering the lethal injection of drugs at his execution as a constitutional violation of his right to be free from cruel and unusual punishment and seeking an injunction to postpone his execution scheduled for January 14, 2004. The district court treated petitioner’s complaint as a second, or successive, petition1 and transmitted it to the court.
The § 1983 action challenging the method of administering drugs at his execution is, as he concedes, to be treated as a second habeas action under current Sixth Circuit decisions. The majority of the panel would deny permission to file a *813second habeas on the grounds presented. They have never been presented to the state court, so there has been no exhaustion. The affidavits in support of a preliminary injunction, in essence, state that if lethal injection is not administered properly, petitioner could experience severe pain without displaying any sign of it. Responsive affidavits detailing the procedure indicate that the concern expressed by petitioner is so unlikely as to be immeasurable.
Petitioner essentially bases his request for a stay of execution on the Supreme Court having granted certiorari in Nelson v. Campbell, — U.S. —, 124 S.Ct. 835, 157 L.Ed.2d 692 (2003). Nelson involves a case involving a prisoner facing the death penalty whose peripheral veins were unavailable and who had to be sedated through the central venous system. The state in Nelson chose the “cut down” technique which allegedly requires more experience and medical training than the usually-performed per cutaneous technique. The Court granted certiorari to answer the following question:
Whether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out his execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254?
The Court has also acted on at least two cases involving similar last-minute challenges to the method of execution of by injection, both from the Fourth Circuit. In Rowsey v. Beck, No. 04-6073 (4th Cir. Jan. 8, 2004), motion to vacate granted, Beck v. Rowsey, — U.S. —, 124 S.Ct. 980, 157 L.Ed.2d 811 (2004), the court vacated the stay granted by the Fourth Circuit. In Reid v. Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003), motion to vacate stay denied, Johnson v. Reid, — U.S. —, 124 S.Ct. 980, 157 L.Ed.2d 810 (2003), the district court had granted an injunction staying an execution. The court of appeals affirmed. The Supreme Court denied the states motion to vacate. Of most relevance to the present petition, however, is the Court’s denial of application for stay of execution in Zimmerman v. Johnson, — U.S. —, 124 S.Ct. 979, 157 L.Ed.2d 792 (2003). In Zimmerman, the Fifth Circuit affirmed the dismissal of the action on the procedural ground that § 1983 is not an appropriate vehicle for challenges to the method of execution and held that applicant should have proceeded by applying for a writ of habeas corpus. The four Justices that dissented from the denial of stay stressed that the Court should stay execution until Nelson was decided. The majority, however, clearly disagreed. We understand this decision to mean that this Circuit is free to follow its prior precedent with regard to this question until the Supreme Court issues its decision in Nelson.
Accordingly, the majority of the panel is of the opinion that we should continue to follow Sixth Circuit precedent in In re Sapp, 118 F.3d 460, 464 (6th Cir.1997) and treat this case as a second, or successive, petition. The district court properly transferred the case as filed to this court so it could pass on it as a request for a second petition. We decline to permit the claim to be filed as a second petition. It has never been presented to a state court. Indeed, petitioner does not seriously claim it meets the requirements for a second petition.
Petitioner asks that we stay our decision to await the decision of the Supreme Court in Nelson. He proffers affidavits from a physician who states that if thiopental sodium is not administered for a sufficient length of time to complete the other steps of the procedure, petitioner *814will suffer severe pain. A lay person who experienced this difficulty describes the pain in her affidavit. In response, the state submits an affidavit from an extremely well-qualified physician explaining why, in the dose to be used by the state, two (2) grams, the condition described by plaintiffs expert will almost certainly not occur. He notes that when thiopental sodium is commonly used for general anesthesia in surgery, it is normally administered in a dose of 300 to 400 milligrams.
Petitioner’s motions for remand to the district court, for preliminary injunctive relief and for stay of execution are DENIED.
In order that petitioner have counsel to pursue any possible habeas relief from the order, Stephen A. Ferrell is appointed to represent petitioner on such proceedings.
. The complaint also sought similar relief for John Glenn Roe scheduled for execution February 3, 2004.