dissenting.
I believe that the proper course of action is to grant the preliminary injunction stay*815ing the execution of Williams. The Supreme Court’s grant of certiorari in Nelson v. Campbell, — U.S. —, 124 S.Ct. 835, 157 L.Ed.2d 692 (2003), calls into question our decision in In re Sapp, 118 F.3d 460 (6th Cir.1997), upon which the district court relied in transferring the action to us as a second or successive habeas petition pursuant to 28 U.S.C. § 1631. In Sapp, a panel of this court held that a challenge to a method of execution brought as an action under 42 U.S.C. § 1983 constitutes a habeas corpus petition. Sapp, 118 F.3d at 464. Sapp relied upon an earlier Supreme Court decision, Gomez v. United States Dist. Ct. for the N. Dist. of Cal, 503 U.S. 653, 653-54, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992), in reaching its decision. Now, the Supreme Court has undertaken to resolve 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 the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254?” Nelson, 124 S.Ct. at 835 (emphasis added). The Supreme Court’s ruling could directly overrule Sapp, confirm the earlier high court holding upon which Sapp relied, or reach some middle ground, but naturally we will not know the answer to this question for several months.
It would be inappropriate and unjust to permit Williams’s execution to occur when the Supreme Court has yet to decide whether Williams has a right to present his claim as a § 1983 action. The Supreme Court, the Sixth Circuit, and other circuits have all granted stays of execution when the Supreme Court has taken a case to resolve an important issue germane to the action. McFarland v. Scott, 512 U.S. 849, 853, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994); Selvage v. Collins, 494 U.S. 108, 109, 110 S.Ct. 974, 108 L.Ed.2d 93 (1990); Steffen v. Tate, 39 F.3d 622, 623 (6th Cir.1994); Mobley v. Head, 306 F.3d 1096, 1097 (11th Cir.200). Recently, the Fourth Circuit stayed the execution of two prisoners, one from Virginia, and one from North Carolina, pending the Supreme Court’s decision in Nelson after those prisoners brought § 1983 claims apparently identical to Williams’s. See Reid v. Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003) (order granting preliminary injunction); Rowsey v. Beck, No. 04-6073 (4th Cir. Jan. 8, 2004) (order denying motion to vacate stay of execution granted by the district court). The Supreme Court denied a motion to vacate the stay in Reid, Johnson v. Reid, — U.S. —, 124 S.Ct. 980, 157 L.Ed.2d 810 (2003), yet it vacated the stay of execution in Rowsey, over the dissent of four Justices. Beck v. Rowsey, — U.S. —, 124 S.Ct. 980, 157 L.Ed.2d 811 (2004). The disparate treatment of these two cases by the Supreme Court is difficult to reconcile given their similarity; the district court in Rowsey stated that the issue there was “factually and procedurally similar, if not identical” to the issue in Reid. Rowsey v. Beck, No. 5:04-CT-04-B0, at 4 (E.D.N.C. Jan. 7, 2004). The Supreme Court’s denial of an application for a stay of execution in Zimmerman v. Johnson, — U.S. —, 124 S.Ct. 979, 157 L.Ed.2d 792 (2003), does not provide: any further guidance. Without further development of the reasons for the Supreme Court’s actions, we should exercise prudence and caution in the face of ambiguity when the consequences of our decision have such gravity.
At this stage, the question of whether Williams has properly filed a second or successive habeas petition pursuant to the provisions of 28 U.S.C. § 2244(b)(2)(A)-(B) is irrelevant because the predicate issue of whether his § 1983 claim is properly construed as a second or successive petition is pending before the Supreme Court. *816Equally unimportant is a consideration of the merits of Williams’s § 1983 action'— whether the State of Ohio’s procedures for lethal injection, which include the allegedly improper use of the barbiturate, thiopental sodium, and the administration of a neuro-muscular blocking agent, pancuronium bromide, that is banned for veterinary use by several states, constitute a cruel and unusual punishment in violation of the Eighth Amendment. The resolution to this question is not appropriately considered now; if the Supreme Court’s forthcoming decision in Nelson v. Campbell demonstrates that Williams’s action is a § 1983 action and not a second or successive habeas petition, the district court must first consider his claim. In any event, the contrasting views of the physicians’ affidavits presented by Williams and the State of Ohio serve to demonstrate a serious question regarding the merits. Nonetheless, here we simply must decide whether Williams’s execution can go forward given that the Supreme Court may determine that Williams has the opportunity to present his grievance before the district court as a § 1983 action. It should not.
In the interest of procedural fairness, I would grant the motion for a preliminary injunction to stay the execution and hold the case in abeyance. It would be cause for great regret if Williams were executed on Wednesday morning only to have the Supreme Court determine several months later that Williams in fact deserved a chance to pursue his action in federal district court.
NO. 04-3014
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
IN RE: JOHN GLENN ROE, Petitioner-Appellant
BEFORE: SUHRHEINRICH, SILER, and CLAY, Circuit Judges.
Filed: Jan. 12, 2004.
Petitioner John Glenn Roe filed joint motions with Lewis Williams, Jr. to stay and abey proceedings and for preliminary injunctive relief for stay of execution. Because these are habeas proceedings, we address each of the petitioners’ motions separately. We hereby adopt in this case the reasoning and the result of the majority opinion authored by Judge Kennedy and concurred in by Judge Suhrheinrich in the matter of In re: Lewis Williams, Jr., issued on January 12, 2004. We further adopt the concurring opinion of Judge Suhrheinrich in the Williams matter.
Thus, for the reasons stated in the those opinions, Petitioner John Glenn Roe’s requests for a stay and abeyance and for preliminary injunctive relief are DENIED.