United States Court of Appeals,

Eleventh Circuit.

No. 96-9334.

Ellis Wayne FELKER, Larry Grant Lonchar, Plaintiffs-Appellants,

v.

Tony TURPIN, Wayne Garner, John Doe, Defendants-Appellees.

Nov. 13, 1996.

Appeal from the United States District Court for the Middle

District of Georgia. (No. 5:96-CV-425-4(DF), Duross Fitzpatrick,

Chief Judge.

Before TJOFLAT, COX and DUBINA, Circuit Judges.

PER CURIAM:

Ellis Wayne Felker and Larry Grant Lonchar (collectively

"Plaintiffs") are Georgia inmates under sentence of death. On

November 8, 1996, less than one week prior to their scheduled

executions, they filed a 42 U.S.C. § 1983 action in the Middle

District of Georgia. In their complaint, they alleged that

Georgia's use of electrocution to carry out a death sentence

constitutes cruel and unusual punishment in violation of the Eighth

and Fourteenth Amendments. They requested declaratory and

injunctive relief. Following review of arguments and affidavits,

the district court issued an order denying their request for a

preliminary injunction and declaratory relief, concluding that they

had no chance of success on the merits. The court then entered

final judgment denying relief. Plaintiffs now appeal.

Plaintiffs have filed a motion for expedited oral argument and

review. The request that review be expedited is GRANTED. The

request for oral argument is DENIED. We now address the merits of
Plaintiffs' appeal, which presents a single issue: whether the

district court erred as a matter of law in denying relief on their

Eighth Amendment claim.

I. RELEVANT PROCEDURAL HISTORY

Prior to filing their § 1983 complaint, Plaintiffs filed

separate 28 U.S.C. § 2254 petitions for writs of habeas corpus in

the Middle District of Georgia. In Lonchar's petition, Lonchar

challenged, among other things, the constitutionality of Georgia's

method of execution. Upon Lonchar's motion, the district court

dismissed the petition with prejudice. In Felker's petition,

Felker challenged the constitutionality of his conviction and

sentence, but did not challenge Georgia's method of execution. In

1995, we affirmed denial of that petition. See Felker v. Thomas,

52 F.3d 907, 913 (11th Cir.), extended on denial of rehearing, 62

F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.

956, 133 L.Ed.2d 879 (1996).

II. DISCUSSION

A. § 1983 CLAIM SUBJECT TO SECOND OR SUCCESSIVE HABEAS RULES

 Guided by Gomez v. United States District Court, 503 U.S.

653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992), as interpreted by

Lonchar v. Thomas, --- U.S. ----, ----, 116 S.Ct. 1293, 1301, 134

L.Ed.2d 440 (1996), we conclude that Plaintiffs' § 1983 claim is

subject to the procedural requirements for bringing a second or

successive habeas claim.

In Gomez, the Court refused to consider the merits of a

plaintiff's cruel and unusual punishment claim brought under § 1983

where the plaintiff did not raise that claim in his earlier habeas
 1

In light of Gomez, we decline to follow Sullivan v. Dugger,

721 F.2d 719, 720 (11th Cir.1983), to the extent that it can be

read to imply that a petitioner may bring a cruel and unusual

punishment claim under § 1983 without being subject to the

procedural rules governing second or successive petitions. 

petitions. According to the Court, habeas rules "would apply, even

if § 1983[was] also a proper vehicle for his "method of execution'

claim...." Lonchar, --- U.S. at ----, 116 S.Ct. at 1301

(interpreting Gomez ). In other words, Gomez held that a plaintiff

cannot escape the rules regarding second or successive habeas

petitions by simply filing a § 1983 claim.

We treat Plaintiffs' § 1983 cruel and unusual punishment claim

as the functional equivalent of a second habeas petition, see

Gomez, 503 U.S. at 653-54, 112 S.Ct. at 1653 (1992), and apply the

rules regulating second or successive habeas petitions.1

 Because

Plaintiffs failed to apply for permission to file a second habeas

petition as required by 28 U.S.C. § 2244(b)(3)(A), as amended by

the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.

No. 104-132, tit. I (1996), the district court was without

authority to consider their request for relief.

 Moreover, the facts alleged do not show that Felker could

meet the § 2244(b)(2) requirements for filing a second or

successive petition. Specifically, his cruel and unusual

punishment claim neither "relies on a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme

Court, that was previously unavailable;" nor has a "factual

predicate [that] could not have been discovered previously through

the exercise of due diligence...." See 28 U.S.C. § 2244(b)(2).

Therefore, we would have denied any application for permission to
file a second habeas petition made by Felker.

 Lonchar could not present his claim in a second habeas

petition because he presented the exact same claim in his previous

federal habeas petition. "A claim presented in a second or

successive habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed." 28 U.S.C. §

2244(b)(1).

B. § 1983 CLAIM AS DISTINCT FROM SECOND OR SUCCESSIVE HABEAS

PETITION

Even if we were to assume that Plaintiffs' action was properly

brought under § 1983 and not subject to habeas procedural

requirements, we would conclude the district court properly denied

Plaintiffs' claim for relief.

 In light of overwhelming precedent, we conclude there is no

merit in Plaintiffs' claim that death by electrocution constitutes

cruel and unusual punishment in violation of the Eighth and

Fourteenth Amendments. See In re Kemmler, 136 U.S. 436, 443-44, 10

S.Ct. 930, 932, 34 L.Ed. 519 (1890); Porter v. Wainwright, 805

F.2d 930, 943 n. 15 (11th Cir.1986); Funchess v. Wainwright, 788

F.2d 1443, 1446 (11th Cir.), cert. denied, 475 U.S. 1133, 106 S.Ct.

1668, 90 L.Ed.2d 209 (1986); Sullivan v. Dugger, 721 F.2d 719, 720

(11th Cir.1983); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th

Cir.1978). Moreover, their contention in the district court that

"there has never been an evidentiary hearing on the effects of

execution by electrocution since the first capital defendant was

killed under this method," Memorandum of Law in Support of

Application for Preliminary Injunction and Complaint for

Declaratory and Injunctive Relief Pursuant to 42 U.S.C. § 1983 at
6, is simply untrue. See e.g. Sawyer v. Whitley, 772 F.Supp. 297,

307 (E.D.La.1991)(considering expert evidence before rejecting

Eighth Amendment claim regarding death by electrocution); Thomas

v. Jones, 742 F.Supp. 598, 606-608 (S.D.Ala.1990)(same); Buenoano

v. Dugger, No. 90-473-CIV-ORL-19, unpublished at 31-35, 1990 WL

119637 (M.D.Fla. June 22, 1990)(same); Ritter v. Smith, 568

F.Supp. 1499, 1525 (S.D.Ala.1983)(same), aff'd in part and rev'd in

part on other grounds, 726 F.2d 1505, 1519 (11th Cir.), and cert.

denied, 469 U.S. 869, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).

 Furthermore, Lonchar's claim is barred because of the

doctrine of issue preclusion. Under that doctrine, Lonchar is

precluded from asserting a § 1983 claim that Georgia's use of

electrocution to carry out a death sentence is unconstitutional

because he raised that issue in his prior federal habeas petition.

See Quarles v. Sager, 687 F.2d 344, 346 (11th Cir.1982)(discussing

preclusive effect that federal habeas petition could have on a §

1983 claim); Hawkins v. Risley, 984 F.2d 321, 323 (9th

Cir.1993)("[A] prior federal habeas decision may have preclusive

effect in a § 1983 action [even though the converse is not

true].").

III. CONCLUSION

Whether analyzed as a § 2254 claim or a § 1983 claim,

Plaintiffs' claim for relief fails for the above reasons.

Therefore, the judgment of the district court is affirmed.

AFFIRMED.