RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0237p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

I N RE : A LVA E. C AMPBELL , J R ., Movant

. ┐ │ │ ┘ No. 17-3855

On Motion to Remand. On Motion to Authorize the Filing of a Second or Successive Application for Habeas Corpus Relief. United States District Court for the Southern District of Ohio at Columbus. No. 2:15-cv-01702—Walter H. Rice, District Judge.
Decided and Filed: October 25, 2017
Before: MOORE, GIBBONS, and McKEAGUE, Circuit Judges.

_________________ COUNSEL

ON MOTION: David C. Stebbins, FEDERAL PUBL IC DEFENDER, Columbus, Ohio, for Movant. ON RESPONSE: Stephen E. Maher, OFFI CE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Respondent. The court delivered a PER CURIAM opini on. MOORE, J. (pp. 15–18), delivered a separate dissenting opinion.

_________________ ORDER

_________________
PER CURIAM. Alva Campbell, Jr., an Ohio prisone r sentenced to death, moves this
court to remand this case to the district court for initial consideration of hi s petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The warden has filed a response opposing his motion. Upon review, we deny Campbell’s motion. 

### >No. 17-3855 In re Campbell Page 2

I
An Ohio jury convicted Campbell of four co unts of aggravated murder, four counts of aggravated robbery, two counts of attempted kidnapping, and one count each of kidnapping, felonious assault, escape, and having a weapon under a disability. The jury recommended that Campbell be sentenced to death. The trial court adopted this recommendation and sentenced Campbell accordingly. On direct appeal, th e Ohio Supreme Court affirmed Campbell’s convictions, but the court remanded the case to the trial court for resentencing due to a procedural error. State v. Campbell , 738 N.E.2d 1178, 1205 (Ohio 2000). On remand, the trial court resentenced Campbell to death. The Oh io Supreme Court affirmed this sentence. State v. Campbell , 765 N.E.2d 334, 344 (Ohio 2002).
In 2005, Campbell filed his first § 2254 petition, alleging twelve gr ounds for relief. The district court dismissed his petition, and this court affirmed that decision. Campbell v.
Bradshaw , 674 F.3d 578, 598 (6th Cir. 2012).
In 2015, Campbell filed a second § 2254 petition, this time challenging Ohio’s lethal injection protocol. The magistra te judge ordered that the case be transferred to this court for initial review because Campbell was attempting to file a “successive” habeas petition, and the magistrate judge repeatedly rejected Campbell’s challenges to that order. See Campbell v.
Jenkins , No. 2:15-CV-1702, 2017 WL 1196167 (S .D. Ohio Mar. 31, 2017); Campbell v. Jenkins , No. 2:15-CV-1702, 2017 WL 978122 (S.D. Ohio Ma r. 14, 2017). Campbe ll appealed this decision to the district judge, who affirmed the order and transferred Campbell’s petition to us
for initial consideration. Campbell v. Jenkins , No. 2:15-CV-1702, 2017 WL 3524686 (S.D. Ohio Aug. 16, 2017).

II
Before a habeas petitioner can file a “second or successive” § 2254 petition, he must
receive authorization from the court of appeals. 28 U.S.C. § 2244(b)(3)(A); In re Salem , 631 F.3d 809, 812 (6th Cir. 2011). To obtain this authorization, the pe titioner must make a prima facie showing either that: (1) a new rule of constitutional law applies to his case that the Supreme Court made retroactive to cases on collat eral review; or (2) a ne wly discovered factualNo. 17-3855 In re Campbell Page 3

predicate exists which, if proven, sufficiently es tablishes that no reason able fact-finder would have found the petitioner guilty of the underlying offense but for constitutional error. 28 U.S.C. §§ 2244(b)(2) and 2244(b)(3)(C); Magwood v. Patterson , 561 U.S. 320, 330 (2010). In this context, a prima facie showing means sufficien t allegations of fact combined with some
documentation that would warrant fuller e xploration in the di strict court. Keith v. Bobby , 551 F.3d 555, 557 (6th Cir. 2009).
However, in limited situations, a § 2254 petition is not considered “second or successive” within the meaning of § 2244(b) even though the pe titioner filed a previous habeas application. See Storey v. Vasbinder , 657 F.3d 372, 376 (6th Cir. 2011). U nder § 2244(b), the phrase “second or successive” is not self-defining. Panetti v. Quarterman , 551 U.S. 930, 943 (2007); Salem , 631 F.3d at 812. Rather, it is a term of art given s ubstance by the Supreme Court’s habeas cases.
Slack v. McDaniel , 529 U.S. 473, 486 (2000); Salem , 631 F.3d at 812. For example, a habeas petition is not considered “second or successive” under § 2244(b) wh en the claim ha s been raised in a prior petition, but dismissed as unripe, a lthough other claims in the initial petition were
decided on the merits. Stewart v. Martinez-Villareal , 523 U.S. 637, 643–46 (1998). Even if the claim was not presented in an earlier petition, a subsequent petition ra ising the claim does not constitute a “successive” petition for purposes of § 2244(b) if the claim would have been dismissed as unripe in the initial petition. Panetti , 551 U.S. at 945. Nor do the successive petition restrictions apply if the first petition was dismi ssed for lack of exhaustion. Slack , 529 U.S. at 478, 487. The restrictions also do not apply if an intervening state court judgment (such as a resentencing) o ccurred after the first habeas petition was decided. Magwood , 561 U.S. at 335, 339; King v. Morgan , 807 F.3d 154, 157 (6th Cir. 2015). This court reviews de novo the question of whether Campbell’s current petition is “second or successive” within the meaning of § 2244(b). See Lang v. United States , 474 F.3d 348, 351 (6th Cir. 2007).
It is undisputed that Campbell is attempting to challenge th e same state-court judgment as in his prior § 2254 petition. Thus, a federal habeas court must consult abuse-of-the-writ principles, as modified by the Anti-Terrorism and Effective Death Penalty Act (AEDPA), to determine whether Campbell’ s current petition is “second or successive.” See Askew v.
Bradshaw , 636 F. App’x 342, 347 (6th Cir. 2016). Under pre-AEDPA caselaw, a petitionerNo. 17-3855 In re Campbell Page 4

abused the writ by raising a clai m in a subsequent petition that could have been raised in an earlier petition, regardless of whether the failure re sulted from inexcusable neglect or a deliberate
choice. McCleskey v. Zant , 499 U.S. 467, 489 (1991).

III
Campbell maintains that his current claims are properly raised in a habeas proceeding. Because the law on this subject is not clear and has been the subject of several recent, published decisions by this Circuit and th e Supreme Court, we pause at th e outset to clarify the standard.

A
Although many citizens have deep -seated objections to the death penalty, execution is not per se unconstitutional. Baze v. Rees , 553 U.S. 35, 47 (2008). Execution necessarily involves some risk that the prisoner will, indeed, feel pain. Id. To some extent, this is the point: Capital punishment alone “has the potential to make the offender recognize, at last, the gravity of his crime and to allow the community as a whole . . . to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed.” Panetti , 551 U.S. at 958. The Eighth Amendment interrupts th e imposition of death only to ensure that the prisoner is not wantonly subj ected to cruel amounts of pain, Baze , 553 U.S. at 47–50, and to prevent the execution of “those who are unaware of the punishment they are about to suffer and why they are to suffer it.” Panetti , 551 U.S. at 957 (quoting Ford v. Wainwright , 477 U.S. 399, 422 (1986) (Powell, J., concurring)).
These two limitations represent two separate facets of the Eighth Amendment. Ford and
Panetti recognized that, although execution is pe rmissible, there is a point where a prisoner’s ability to perceive reality is so diminished that imposing the sentence of death becomes constitutionally impermissible. Under such ci rcumstances, the road from sanity to insanity ordinarily being a one-way street, a sentence of death—a lthough legally pronounced—cannot legally be carried out. Baze , on the other hand, permits a prisoner to acknowledge the legality of his sentence while asserting an Eighth-Amendmen t civil-rights claim under 42 U.S.C. § 1983 to restrain the government from torturing him on his way to the next world. Because a Baze challenge concedes the legality of the death sent ence itself, to obtain injunctive relief, a prisonerNo. 17-3855 In re Campbell Page 5

must show: (1) that the method of execution he currently faces is accompanied by a very high probability that he will experience severe pain, and (2) a “feasible, readily implemented” and significantly less painful alternative. Baze , 553 U.S. at 52.
This substantive backdrop may be helpful to understanding the pro cedural labyrinth at
issue in this case. Federal la w provides two methods for a prisone r to challenge hi s conviction or sentence: habeas corpus and 42 U.S.C. § 1983. Hill v. McDonough , 547 U.S. 573, 579 (2006). Identifying the proper procedure for a ch allenge is not always an easy task. Id. However, the nature of the relief sought in ever y case acts as a guide. It is undi sputed that there are some postconviction claims that cannot be brought under § 1983. A pr isoner who seeks a judgment declaring “the fact or duration” of his sentence unconstitutional must proceed under the habeas statutes, and cannot proceed under § 1983. Heck v. Humphrey , 512 U.S. 477, 481 (1994). The reason for this is simple: a judgment in a civil tortaction lacks the authority to set aside a criminal conviction or its accompanying sentence. See id. at 486.
However, in Nelson v. Campbell , the Court suggested in di cta that some method-ofexecution claims could be brought under either scheme. 541 U.S. 637, 644 (2004). It noted hypothetically that, in a state that only permits lethal-injection executions, “a constitutional challenge seeking to permanently enjoin the use of leth al injection may amount to a challenge to
the fact of the sentence itself.” Id. (emphasis added). The Court re iterated this suggestion in
Hill , but declined to decide the question. Instead, the Hill Court narrowed Nelson , holding that if
a method-of-execution claim concedes that some other type of execution would be constitutional, then the claim must be brought under § 1983. Hill , 574 U.S. at 580–81. Thus, after Hill , the only potential, yet- to-be-recognized Nelson claim would be a method-of-execution argument asserting that there is no constitutional mean s by which the prisoner could be executed.

In Adams v. Bradshaw ( Adams II ), we declined to read Hill as ending this debate. 644 F.3d 481, 482–83 (6th Cir. 2011). In Adams II —prior to any factual development—the warden argued that the federal court lacked jurisd iction to review any claim in habeas if it could also have been brought under § 1983. Id. We held that this argument was far too broad, noting that some constitutional claims can indeed be brought under both regimes. Id. at 483. We also distinguished Hill , pointing out that Adams had not “conc eded the existence of an acceptableNo. 17-3855 In re Campbell Page 6

alternative procedure.” Id. Because the record lacked substance, Adams II remanded the petition to the district court for further proceedings. Id. at 482. Thus, Adams II was simply a bare recognition that the two remedies were not mutua lly exclusive in every case, and that Adams was entitled to pursue factual de velopment of his claim.

After Adams II, the Supreme Court decided Glossip v. Gross , 135 S. Ct. 2726 (2015). In Glossip , the Court addressed a Baze -style § 1983 challenge to an execution protocol. Id. at 2738–39. In an attempt to escape Baze ’s requirement that they identify an alternative execution protocol (because they could not do so), the pe titioners pointed to a procedural wrinkle in Hill , where the Court refused to read § 1983 as requi ring prisoners to plead an alternative method. Id. The Court responded that this mischaracterized Hill ’s holding. Id. Instead, the Court stated that,
in Hill , “we held that a method-of-executio n claim must be brought under § 1983 because such a claim does not attack the validity of the prisoner’s conviction or death sentence. ” Id. (emphasis added). It then pointed out that while § 1983 might not require a plaintiff to plead an alternative method, the Eighth Amendment does impose such a requirement. Id.
Glossip then proceeded to untangle the appellants’ (and the dissent’s) attempt to
eviscerate Baze . The majority reasoned that there was no difference between a categorical prohibition on the death penalty and a standard that permitted a Baze plaintiff to win relief without offering an alternative method. Id. at 2739. While arguing against an alternativemethod requirement, the dissent suggested that “more primitive” means of execution—i.e., execution by firing squad, electric chair, or gas chamber—might also be unconstitutional. Id. at 2790–96 (Sotomayor, J., dissenting). But the majority responded to this with a pointed rhetorical question: “If states cannot return to any of th e ‘more primitive’ methods us ed in the past and if no drug that meets with the principal dissent’s approval is available for use in carrying out a death sentence, the logical conclusion is clear. But we have time and time again reaffirmed that capital punishment is not per se unconstitutional.” Id. at 2739. In sum, Glossip held that a Baze challenger has no claim unless he can identify a constitutional means by which he can be
executed.No. 17-3855 In re Campbell Page 7

B
Notice that this closes the final path into habeas court left open by Hill and Adams II . No one here disputes that a death-penalty challeng e is not cognizable in habeas unless a defect impairs the very fact of the death sentence itself. Glossip , 135 S. Ct. at 2738–39; Hill , 547 U.S. at 579; Nelson , 541 U.S. at 644; Heck , 512 U.S. at 481; Adams II, 644 F.3d at 483. The reasons for this are prescribed by the statute. A § 2254 habeas court only has jurisdiction to act in favor of “a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a) (emphasis added). An unconstitutional death sent ence is a form of cu stody that the writ can reach, because it is a judgment imposed without authority. See Irvin v. Dowd , 366 U.S. 717, 728–29 (1961); U.S. Const., Art. VI, § 2. But as Hill recognized, an illegal method of execution has nothing to do with the j udgment itself—unless, of course , the prisoner as serted that all available means of execution are unconstitutional

. Hill , 574 U.S. at 580–81. In that case, it would effectively render the judgm ent void and unenforceable.
This is precisely the argument a claimant cannot make after Glossip . Indeed, the Court expressly refused to countenance the possibility that a state could be le ft without any lawful
means of execution. Glossip , 135 S. Ct. at 2739. In the majority ’s view, this would be the same as an outright ban on th e death penalty itself. Id. Glossip therefore closed the hypothetical door left open by Nelson , Hill , and Adams II . No longer can a method-of-execution claim impair a
death sentence itself. And sin ce a method-of-execution claim canno longer “attack the validity of the prisoner’s conviction or death se ntence,” a habeas court cannot act upon it. Id. at 2738. Thus, the Glossip Court necessarily barred all habeas petitions cha llenging “a particular application of a particular prot ocol to a particular person” as unconstitutionally painful. In re
Tibbetts , 869 F.3d 403, 406 (6th Cir. 2017). These challenges are properly remedied by an injunction prohibiting the state from taking certain actions , rather than a writ of habeas corpus that vacates the sentence entirely.
A review of fundamental habeas and § 1983 prin ciples confirms that this is the correct view of the law. Only when a serious error infects the very factof a death sentence can the writ grant relief. See Heck , 512 U.S. 477, 481; Buck v. Davis , 137 S. Ct. 759, 777 (2017). This principle arises because habeas relief does not ex ist to ferret out every constitutional violation, orNo. 17-3855 In re Campbell Page 8

even to directly prohibit the government from br eaking the law; instead, it exists to relieve the prisoner of an unlawful sentence. See, e.g. , Stone v. Powell , 428 U.S. 465 (1976); Gall v. Scroggy , 603 F.3d 346, 353 (6th Cir. 2010). To that end, the writ necessarily “provides the petitioner the right to relief from alldirect and collateral consequences of the unconstitutional [sentence].” Gall , 603 F.3d at 353 (emphasis added). Thus, if a petitioner’s legal theory would

not inherently require the nullificat ion of his death sentence, he ha s no business pr oceeding in a
habeas court. The Great Writ is not concerned with the piecemeal reformation of an imperfect criminal justice system.
In contrast, § 1983 is engineered to accomplis h this lofty goal. The statute empowers a court to enjoin, “in equity,” “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States . 42 U.S.C. § 1983 (emphasis added). When properly invoked, the statute can be used to comp el the government to recognize that even the guilty have rights, and that even a conviction or death sentence does not deprive a person of their humanity. See, e.g. , Baze , 553 U.S. at 52; Hudson v. McMillian , 503 U.S. 1 (1992); Tennessee v.
Garner , 471 U.S. 1 (1985); Estelle v. Gamble , 429 U.S. 97 (1976). Indeed, Ohio death-row inmates—including Campbell—are currently litigating the constitutionality of the protocol in a § 1983 action, seeking a declaration that Ohio’s execution protocol is torturously painful. See In re Ohio Execution Protocol Litig. , No. 2:11-cv-1016 (S.D. Ohio). In fact, Campell’s motion for a preliminary injunction to stay execution is set for hearing this very week. Ultimately, this is
the relief that all method- of-execution claims seek: an order di rected at state officials, declaring that the state’s ends do not justify its means, and requiring the state to find another, less cruel way to enforce a judgment of death against the prisoner.

C

One wrinkle remains. After Glossip was decided, the Adams case returned to this Court.
Adams v. Bradshaw , 826 F.3d 306 (6th Cir. 2016) ( Adams III ). Adams III came on appeal after our remand to the district court resulted in development of the facts. Id. at 309. The factual development revealed that Adams was protesting the “psychological toll” resulting from Ohio’s recent changes to its lethal-injection protocol—facts not presented in Adams II

. Id. at 320. We immediately responded to this reve lation by holding that Adams “fa iled to present this claim toNo. 17-3855 In re Campbell Page 9

the state courts, nor did he raise it in his habeas petition.” Id. This failure, as a matter of law, barred Adams from pursuing the claim in habeas. Id. ; 28 U.S.C. § 2254(b); Wainwright v. Sykes , 433 U.S. 72 (1977).
Notwithstanding the procedural default, the panel proceeded to speculate in dicta about the viability of a psychol ogical-torment claim. Adams III, 826 F.3d at 320. It ultimately found the claim unsupported by the substantive law. Even then, the pa nel proceeded to discuss—again in dicta—the holding of Adams II in light of Glossip

. Id. at 321. It reiterated that “Adams’s case is distinguishable from Hill because Adams argues that lethal injection cannot be administered in a constitutional manner, and that his claim ‘could render his death sentence effectiv ely invalid.’”
Id. at 321 (quoting Hill , 547 U.S. at 580). Therefore, “to the extent that [a petitioner] challenges the constitutionality of lethal injection in genera l and not a lethal-injection protocol, his claim is cognizable in habeas.” Id.

We think this dictum mischaracterizes both Adams II and Glossip . And, of course, dictum in a prior d ecision—as opposed to a holding —does not bind future panels, including this one. 6th Cir. R. 32.1(b); United States v. Turner , 602 F.3d 778, 785–86 (6th Cir. 2010) (explaining that statements whic h are “not necessary to the outcome” are not binding on later panels). The Adams III panel had already concluded that the petitioner’s claim was both procedurally defaulted and forfeited. Adams III, 826 F.3d at 320. And although we may choose
to excuse forfeiture in an exceptional case, we cannot ignore procedural default absent an express finding of cause and prejudice. Wainwright , 433 U.S. at 86–87. T hus, the statements “necessary” to the decision in Adams III ended when the panel acknowledged the default and forfeiture without any indication th at an exception was present. Adams III, 826 F.3d at 320.

Thus, to the extent that Adams III purported to permit Baze -style habeas claims that refuse to concede the possibility of an accepta ble means of execution, it is not controlling.
Since Glossip ’s holding directly addr essed that question, it is binding on us, and we follow it today. In doing so, we do not intend to diminishthe importance or correctness of the holding in
Adams II that § 1983 and habeas are not mutually exclusive as a per se rule . All Baze and Glossip require is that—in the pecu liar context of method-of-ex ecution claims—the death-row inmate must proceed under § 1983.No. 17-3855 In re Campbell Page 10

IV
Having clarified the standard, we examin e Campbell’s motion. From our reading, we discern three arguments: (1) thatrecent changes to Ohio’s execution protocols raise new factual
claims that could not have been brought in his first habeas petiti on; (2) that his newly worsened medical conditions render all lethal injections unc onstitutionally painful; and (3) that there is no meaningful difference between mental inco mpetency (which precludes execution under the Eighth Amendment) and his severe physical ailments. See Atkins v. Virginia , 536 U.S. 304 (2002); Ford v. Wainwright , 477 U.S. 399 (1986). Campbell c ontends that since Ohio only executes prisoners by lethal inje ction, accepting any of these positions requires us to vacate his death sentence, as Ohio would be left with no co nstitutional means to execute him. We disagree.

A
We first address Campbell’s objection to the shifting execution protocols. He notes that Ohio has repeatedly changed its lethal injection protocols since 2005, as certain drug s used in the process became increasingly difficult to acquire. He also argues that the state has experienced difficulties in implementing these protocols. He contends that he could not have raised these concerns in his first § 2254 habeas petition and th at he has filed them “when the claim is first ripe.” Panetti , 551 U.S. at 947. We have no quarrel withthis statement as a practical matter— obviously Campbell is not required to predict th e trajectory of Ohio’s execution practices.
But that does not change the fact that, in this respect, he has not raised a habeas claim. If we were to hold, today, that Ohio’s lethal-i njection protocol has b ecome so erratic and unpredictable that it is now “cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Furman v. Georgia , 408 U.S. 238, at 309 (1972) (S tewart, J., concurring), that order would not impair the va lidity of Campbell’s death sentence at all. The fact that Ohio currently permits execution only by lethal injecti on does not change that fact. The Ohio legislature could, tomorrow, enact a statute reinst ating the firing squad as an alternative method
of execution. See, e.g. , Utah H.B. 11, Death Penalty Procedure Amendments, § 77-18-5.5(b)(4) (2015) (“If a court holds that execution by lethal injection is unconstitutional as applied, the
method of execution for that defendant shall be by firing squad.”).No. 17-3855 In re Campbell Page 11

In other words, our decision would not be an order se tting aside Campbell’s death sentence. It would be an injunction agains t the Ohio Department of Rehabilitation and Correction, forbidding it from killing Campbell by leth al injection. The Stat e of Ohio could still execute Campbell—it would simp ly need to find a method that comports with the Eighth Amendment. Thus, while the new facts alleged by Campbell were previously unavailable, they do not create a predicate for any new habeas claims. His claim may be newly ripe, but Campbell is trying to pick an apple from the wrong tree.

B
Campbell next argues that his dete riorating physical condition makes all methods of lethal injection unconstitutional as to him. Beca use his health has signifi cantly worsened since the filing of his original habeas petition, he ma intains that these are ne w facts making his claim “ripe” for consideration in a “su ccessive” habeas petition. Specifica lly, he contends that the pain caused by the “air hunger” inherent in a lethal in jection would be magnified exponentially by his new respiratory ailments. He attempts to fit this claim into the habeas mold by asserting that this “paradoxical reaction to the administration of any lethal injection drug . . . render[s] any attempt of the state to execute him [given the unavaila bility of alternative methods] unconstitutional.” Petr.’s Mot. to Remand, at 18–19. Therefore, he says, we must vacate his death sentence.
The problem is that Campbell has pled an incomplete Baze challenge that fails as a matter
of law after Glossip . A prisoner who challenges a met hod of execution as unconstitutionally painful must identify an alternative means by which he may be executed. Glossip , 135 S. Ct. 2739. Campbell’s failure to do so would require any federal court to either dismiss the claim or require him to amend his pleadings. Id. Glossip makes clear that a prisoner cannot invalidate his death sentence simply by asserting that every method offered by stat e statute will be unconstitutionally painful. Id. And as we explained above, the C ourt’s decision to preclude this argument effectively divests us of hab eas jurisdiction over such a claim.
In reaching this conclusion, we do not diminish the gravity of Campbell’s allegations. We suppose that his claims, if substantiated, coul d raise a significant prob lem with administering a lethal injection. Nor do we find—a s we did with the petitioner in Tibbetts —that CampbellNo. 17-3855 In re Campbell Page 12

could have raised these sp ecific allegations in 2005. Tibbetts , 869 F.3d at 407. We simply hold that, on these facts, Campbe ll has not presented any new habeas claims that (if meritorious) would require us to vacate his death sentence. As we noted in rejecting Campbell’s first argument—even if we were to agree with Cam pbell on the substance here, Ohio would still be permitted to execute him. The proper method for Campbell to bring these claims is in a § 1983
action under Baze —as he has done in the district court. See In re Ohio Execution Protocol Litig. If he prevails on the merits, the district court wi ll enjoin Ohio officials from executing Campbell by lethal injection. Again, his cl aim is newly ripe, but he is here attempting to seek relief in the wrong forum.

C
Campbell attempts to escape this problem by analogizing his claim to one challenging the competency of a prisoner to be executed. A competency claim under Ford is a habeas issue, and it does not become ripe until an execution date is set. Martinez-Villareal , 523 U.S. at 643. Since that date often may not exist during the pendency of the original habeas petition, the limitation on second-or-successive habeas petitions does not apply, so long as the second-in-time petition is filed as soon as it becomes ripe. Panetti , 551 U.S. at 945.

In Tibbetts , we rejected the argument that the Ford exception should extend to the petitioner’s claim that he was not “well enough physically to face execution.” 869 F.3d at 407 (italics in original). We reached this decision fo r two reasons. First, we noted that no authority supported the premise that physical health pr oblems could render an execution absolutely unconstitutional in the same way insanity does. Id. Second, we pointed out that, at any rate, the petitioner’s health allegations were either too “unspecific” to be helpful or “were known when he filed his first habeas petition.” Id. Campbell attempts to distinguish Tibbetts by pleading with more specificity and arguing thatthe more serious versions of these ailments arose after his 2005 petition and were therefore unavailable at that time. This specificity cures the second problem
identified in Tibbetts , but not the first. Since Tibbetts ’s holding rested on the second problem, we did not fully articulate the reasoning behind the first problem. We clar ify that position today.No. 17-3855 In re Campbell Page 13

For at least twenty years, medical professi onals have known that mental disorders are based in biology, just as are th eir physical counterparts. See Brian D. Shannon, The Brain Gets
Sick Too , 24 St. Mary’s L.J. 365, 367 (1993); Bets ey J. Grey & Gary E. Marchant, Biomarkers, Concussions, and the Duty of Care , 2015 Mich. St. L. Rev. 1911 (2015). But similarity in fact does not always equal similarity in law. In Tibbetts , we recognized that deteriorating mental health impairs a person’s “capacity to come to grips with his own conscience and deity.”
Tibbetts , 869 F.3d at 407 (quoting Ford , 477 U.S. at 409). Thus, a biological disease lodged in the brain renders execution impermissible “only of those who are unaware of the punishment they are about to suffer and why they are to suffer it.” Panetti , 551 U.S. at 957 (quoting Ford , 477 U.S. at 422 (Powell, J., conc urring)). For this reason, a Ford claim is properly raised in habeas, because, if successful, it wipes out the death sentence entirely.

But the Court has not indicated that a biological disease lodg ed in any other part of the body has an impact on this moral calculus. Ev en a terminally ill can cer patient can often contemplate what is to come. This fact is why we said in Tibbetts that “we know of no comparable solicitude toward thos e who claim not to be well enough physically to face
execution.” Tibbetts , 869 F.3d at 407. A person’s ability to refl ect, repent, and grapple with his or her guilt is rarely impacted by physical sickness. Perhaps the medical community has catalogued a physical disease so horrible, so humilia ting, and so degrading that the disease itself renders execution cruel and unusual, separate and apart from the in mate’s ability to engage in lucid moral reasoning. But we are unaware of any, and Campbell has not presented one here.

V
When placed in this context, it is clear th at Campbell is seeking an injunction against a particular method of execution as applied to him, rather than an order vacating his death sentence entirely. See id. at 407 n.2. That relief is not available in a habeas act ion. He has therefore not pled any new facts that, if proven, would absolu tely prohibit his execution. Neither has he brought any newly ripe legal challenges that would, if successful, require us to vacate his death sentence. Therefore, his petition is second or successive, and we DENY Campbell’s motion to remand the case to the district court. Because it is second or successive, we have jurisdiction to evaluate whether § 2244(b) permits Campbell to proceed in the district court.No. 17-3855 In re Campbell Page 14

Although Campbell does not ask this court for au thorization to file a “successive” § 2254 petition, such a request would be pointless. Campbell does not rely on a new rule of constitutional law that applies retroactively to h im. While he does rely on new facts relating to Ohio’s lethal injection protoc ols and his ongoing health proble ms, none of these facts concern his guilt of the underlying offenses or the lega lity of imposing the death sentence upon him. Therefore, he is not eligible to file a “successive” petition under § 2244(b). Consequently, as no further matters are outstanding, we DISMISS the petition.No. 17-3855 In re Campbell Page 15

_________________ DISSENT

_________________ KAREN NELSON MOORE, Circu it Judge, dissenting. I agree with the majority that Campbell’s petition is newly ripe , but I respectfully dissent from the conclusion that he is necessarily attempting to seek relief in the wron g forum. Because I beli eve that he has raised sufficient newly present biological facts to render his own death sentence potentially unconstitutional and thus to render his habeas pe tition not “second or suc cessive” for purposes of 28 U.S.C. § 2244(b), I would instead remand th is case to the district court for further proceedings.
Campbell has, as the majority observes, detailed a host of ailments th at have befallen him since 2003, when he filed his first pe tition. Specifically, he asserts:
Since 2003, . . . Campbell’s health has progr essively, and acutely, worsened, with multiple severe and life-threatening ailments arising almost every year: 2003 – diagnosis of pulmonary hypertension; 2004 – diagnosis of increa sed scarring in the lungs and growing nodules in the upper lungs and severely worsening emphysema leading to concerns with air hunger; 2006 – diagnosis of Chronic Obstructive Pulmonary Disease (COPD) and emphysema classified as “end stage,” diagnosis of collapsed lung and re spiratory failure, sarcoidosis (for which there is not cure), coronaryartery disease, atrial fi brillation, hypertension, deep vein thrombosis and pulmonary embolism; 2012 – hypoxemic respiratory failure (starving for oxygen), histoplasmosis, atri al fibrillation with rapid and out of rhythm heartbeats; 2014 – diagnosis of worsening COPD ex acerbation, increasing nodules in lungs, emphysema increasing in lungs, discovery of an aortic aneurysm; 2015 – diagnosis of prostate cancer and surgical prostatectomy, spontaneous collapsed lung requiring a life flight to OSU Hospital; and a diagnosis of MRSA while at OSU Hospita l; 2016 – hip replacement surgery after being knocked down by another inmate, while at OSU Hospital staff discovered a gangrenous colon and 2 surgeries were re quired to remove the colon and equip him with an external colostomy bag; 2017 – diagnosis of pneumonia after being hospitalized for coughing up blood. In addition to these physical characteristics that inhibit his ability to breathe, Ca mpbell must take oxygen treatments four times a day in order to function, and he relies on a walker for very limited mobility.No. 17-3855 In re Campbell Page 16

Pet.’s Mot. to Remand at 17–18; see also R. 19-1 (Amended Pet. for Writ of Habeas Corpus at 26–27) (Page ID #522–23). As Campbe ll argues: “All of these condi tions are sure or very likely to increase the air hunger that Campbell will n ecessarily suffer as the result of the State’s
administration of any lethal injection drug, and increase th e sure or near certain likelihood that Campbell will suffer a paradoxical r eaction to the administration of any lethal injection drug— thus rendering any attempt of the State to execute him [given the unavailability of alternative methods] unconstitutional.” Pe t.’s Mot. to Remand at 18–19.
Were Campbell simply challenging Ohio’s ge neralized use of a particular execution protocol without offering a “know n and available alternative,” I agree with the majority that Glossip v. Gross , 135 S. Ct. 2726, 2739 (2015), would foreclose his claim. Such a ruling would be tantamount to declaring the death penalty as a whole unconstitutional in a given state, and the Court has “time and again reaffirm ed that capital punishment is not per se unconstitutional.” Id. I see an important distinction between Glossip and Campbell’s case, however, in the fact that
while Glossip featured an across-the-board challenge to the only appr oved methods of execution in Oklahoma, this case concerns only whether “the fact of [Campbell’s] sentence itself,” Nelson v. Campbell , 541 U.S. 637, 644 (2004), is constitution al in light of Campbell’s personal biological characteristics and the curr ently available means of execution.
The majority correctly characterizes Campbell as seizing on this distinction by drawing an analogy between his biological ailments and the neurobiological ailments that the Court has
made clear can undergird a successful habeas petition wi thout running afoul of the § 2244(b) “second or successive” bar, see Panetti v. Quarterman , 551 U.S. 930, 945–47 (2007); see also Stewart v. Martinez-Villareal , 523 U.S. 637, 645 (1998). Su ch arguments from mental incompetency, often referred to as Ford claims after Ford v. Wainwright , 477 U.S. 399 (1986) (holding that the Eighth Amendmen t prohibits executing a person w ho is insane), clearly fall
outside Glossip ’s scope: A person who is insane when hi s execution date is set can still sue in habeas, and need not assert (as if he could) alternative means by which he can be killed that are somehow not at odds with the Eighth Amendment. See, e.g. , Panetti , 551 U.S. at 945–47.
Medical science, as the majority recogni zes, has meanwhile debunked the ostensible divide between mental and physical health, show ing that many mental-health problems are issuesNo. 17-3855 In re Campbell Page 17

of brain biology just as pulmonary pr oblems are issues of lung biology. See, e.g. , Brian D. Shannon, The Brain Gets Sick, Too: Th e Case for Equal Insurance Coverage for Serious Mental
Illness , 24 St. Mary’s L.J. 365, 367 (1993) (observi ng that “medical researchers have made numerous findings establishing th at serious mental illnesses su ch as schizophrenia, bipolar affective disorder, and depressive illness are biol ogically-based diseases of the brain” (footnotes omitted)). In light of that mounting aw areness, it seems “[a]n empty formality,” Panetti , 551 U.S. at 946, to say that one petitioner’s habeas claim is cognizable because his brain’s biology has deteriorated substantially between the imposition and scheduled execution of a death sentence while saying that the petition of another whose biology ha s deteriorated in some other but equally significant way during the same span is necessarily barred. Just because such factual situations may be rare does notmean that they do not exist. 1 And in my view, Campbell has asserted sufficient biological deterioration—given the extraordin ary list of ailments detailed above, see Pet.’s Mot. to Remand at 17–18—to justify remand for factfinding here.
I thus believe that Campbell’s petition is not foreclosed by Glossip , and instead that he has fit his claim into the cognizab le form that we outlined in Adams v. Bradshaw , 826 F.3d 306 (6th Cir. 2016), cert. denied , 137 S. Ct. 814 (2017). Th ere, we distinguished Hill v. McDonough , 547 U.S. 573 (2006), which directed petitioners whos e claims would “leave the State free to use
an alternative lethal injection procedure” to bring suit under § 1983, id. at 580–81, from a case in which “lethal injection cannot be administered in a constitutiona l manner,” and thus where the “claim ‘could render [the] death sentence effectively invalid.’” Adams , 826 F.3d at 321 (quoting
Hill , 547 U.S. at 580). We explained that this distinction was “consistent with the Supreme Court’s reasoning in Nelson , which suggested that, under a statutory regime similar to Ohio’s, ‘a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself.’” Id. (quoting Nelson , 541 U.S. at 644). As I see it, that is Campbell’s argument here: because of newly developed biological facts, the state cannot constitutionally execute him by lethal injection, and because the state cannot execute him by any

1 Consider, for example, a state that permits execution on ly by lethal injection and a defendant who after his first habeas petition develops a severe allergy to all av ailable execution drugs, thereby guaranteeing lengthy and excruciating pain at any dose. Wh y wouldn’t that case be more like Ford than Glossip , when it would apply uniquely to the petitioner—and thus not challenge the state’ s overall protocol—but still challenge the “fact of the sentence itself,” see Nelson v. Campbell , 541 U.S. 637, 644 (2004)?No. 17-3855 In re Campbell Page 18

means other than lethal injection under Ohio law, his death senten ce cannot now be carried out in a way that is consistent with the Eighth Amendment.

The Court in Ford did not specify exactly why it woul d violate the Eighth Amendment to
kill someone who is insane at th e time of execution; the Court’s ultimate conclusion was simply that “[w]hether its aim be to protect the conde mned from fear and pain without comfort of understanding, or to protect the dignity of society itself from the barbarity of exacting mindless vengeance, the restriction [on executing the insane] finds enforcement in the Eighth
Amendment.” Ford , 477 U.S. at 410. There are situatio ns in which killing a person whose mental biology has deteriorated would be an exercise in mindless vengeance, and there are situations in which killing a pe rson whose physical biology has deteri orated would be an exercise in mindless vengeance. Whether the biological facts asserted here are ultimately adequate to justify relief is, of course, for the district court to decide in the first instance—perhaps they are not. But because Campbell has dire cted us to sufficiently specific and recent biological facts that make his petition newly ripe and that could potentially make his personal death sentence unconstitutional, I would remand for further proceed ings to assess whether Campbell’s assertions
in fact rise to that level. I therefore respectfully dissent.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk