                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MICHAEL ANGELO MORALES,                     No. 10-99019
                         Plaintiff,
                                               D.C. No.
              and                          5:06-cv-00219-JF
ALBERT GREENWOOD BROWN,
              Plaintiff-Appellant,       Northern District of
                                              California,
               v.                              San Jose
MATTHEW CATE,                                 AMENDED

                                      
             Defendant-Appellee.               ORDER


                  Filed September 28, 2010

 Before: Andrew J. Kleinfeld, M. Margaret McKeown, and
           Raymond C. Fisher, Circuit Judges.


                           ORDER

   1. This appeal in its present posture is not about the guilt
of Albert Greenwood Brown. He was found guilty of a hor-
rific crime and his conviction has been sustained by both state
and federal courts. Nor is this proceeding about the constitu-
tionality or availability of the death penalty, a procedure
countenanced by the Supreme Court. Gregg v. Georgia, 428
U.S. 153 (1976). Instead, we address the narrow issue of the
manner and timing of Brown’s execution in a fashion that
comports with the Eighth Amendment’s protection against
cruel and unusual punishment. In short, the question is
whether the State’s newly revised three-drug lethal injection
protocol, which replaces a similar protocol the district court
previously found flawed based on evidence that the protocol
created at least “an unnecessary risk of unconstitutional pain,”
                             16745
16746                  MORALES v. CATE
has succeeded in remedying those flaws, such that there is
now no “substantial risk of serious harm” to the condemned
prisoner.

   2. The timing of Brown’s execution date is apparently
dictated in part by the fact that “the state’s existing inventory
of sodium thiopental consists of 7.5 grams, with an expiration
date of October 1, 2010.” State’s Opp. Br. at 6, n.3. After a
four-year moratorium on executions in California, multiple
proceedings in federal court, a state administrative law pro-
ceeding, and state court appeals, it is incredible to think that
the deliberative process might be driven by the expiration date
of the execution drug. As the State acknowledges, additional
supplies will be available in the first quarter of 2011. Id. Tim-
ing is everything and the district court should take the time
necessary to address the State’s newly revised protocol in
accord with Supreme Court authority.

   3. Previously in this case, the district court denied
Michael Angelo Morales a stay of execution, subject to a
series of conditions to preserve Morales’s “constitutional right
not to be subject to an undue risk of extreme pain.” Morales
v. Hickman, 415 F. Supp. 2d 1037, 1046 (N.D. Cal. 2006).
We affirmed that order. Morales v. Hickman, 438 F.3d 926
(9th Cir. 2006). Under the district court’s order, the State
could proceed with the execution using its preferred three-
drug procedure only if it allowed an anesthesiologist to moni-
tor the execution. Alternatively, the order permitted the State
to employ a single-drug procedure that would avoid the risk
of unconstitutional suffering. Id. at 927 & n.2. The State
elected to use the three-drug procedure, but was unable to
secure the assistance of an anesthesiologist. The execution did
not proceed. The State then sought permission to implement
the one-drug option. The district court granted permission so
long as the drug was injected “by a person or persons licensed
by the State of California to inject medications intravenous-
ly.” Order on Defendants’ Motion to Proceed with Execution
Under Alternative Condition at 3, Morales v. Hickman (Nos.
                       MORALES v. CATE                     16747
06 219, 06 926, N.D. Cal., Feb. 21, 2006). Once again, the
execution did not proceed and a stay issued automatically.

   4. Thereafter, following discovery and an extensive evi-
dentiary hearing on the execution protocol, the district court
concluded that Operational Protocol 770 (O.P. 770), the
State’s lethal injection protocol, suffered from “a number of
critical deficiencies.” Morales v. Tilton, 465 F. Supp. 972,
979 (N.D. Cal. 2006). The court also found that implementa-
tion of the protocol “lack[ed] both reliability and transparen-
cy” and that “the [State’s] actions and failures to act have
resulted in an undue and unnecessary risk of an Eighth
Amendment violation. This is intolerable under the Constitu-
tion.” Id. at 981. After the district court’s ruling, there was a
de facto moratorium on all executions in California.

   5. Following state court proceedings regarding the
revised protocol’s legality under California’s Administrative
Procedures Act, see Morales v. Cal. Dep’t of Corrs. and
Rehab., 168 Cal. Ct. App. 4th 729 (2008), a new lethal injec-
tion protocol became effective August 29, 2010. See Cal.
Code Regs. tit. 15, § 3349, et seq. On September 20, 2010, the
California Court of Appeal, First District, held that the new
procedure was presumptively valid, and authorized the
resumption of executions. See Cal. Dep’t of Corrs. and
Rehab. v. Superior Court, 2010 WL 3621873 at *4-5 (Sept.
20, 2010).

   6. On August 30, 2010, the State had already scheduled
the first execution in four years—Albert Greenwood Brown—
for September 29, 2010.

   7. Brown intervened in this pending federal proceeding
and the district court conditionally denied his motion for a
stay of execution. Order Denying Stay, Morales v. Cate (Nos.
06 219, 06 926, N.D. Cal., Sept. 24, 2010) (“Sept. 24 Order”).
The district court found that Brown’s intervention and pursuit
16748                   MORALES v. CATE
of his claims in the Morales litigation is timely. Sept. 24
Order at 6-7.

   8. In its order, the district court stated that it “always has
understood, apparently incorrectly, that executions could not
resume until it had an opportunity to review the new lethal
injection protocol in the context of the evidentiary record” in
the Morales case. Sept. 24 Order at 3. The court “itself was
surprised by the Defendants’ decision to seek an execution
date for Brown when they did . . . .” Id. at 6. According to the
district court, it is the State’s choice of an execution date that
prevents meaningful review. Id.

   9. Between the time of the district court’s rulings in
Morales and Brown’s intervention in the case, the Supreme
Court decided Baze v. Rees, 553 U.S. 35 (2008), which
involved an Eighth Amendment challenge to Kentucky’s
lethal injection protocol, with the three-Justice plurality artic-
ulating a standard requiring the prisoner to establish a “sub-
stantial risk of serious harm,” id. at 52, and stating that “[a]
stay of execution may not be granted . . . unless the con-
demned prisoner establishes that the State’s lethal injection
protocol creates a demonstrated risk of severe pain.” Id. at 61.

   10. Addressing the effect of Baze on Morales’s case, the
district court stated that “[a]lthough [it had] framed its factual
findings and legal conclusions under the legal standard then
applicable in the Ninth Circuit, . . . it likely would have made
the same findings and reached the same conclusions under the
‘demonstrated risk’ standard announced in Baze.” Sept. 24
Order at 8.

   11. Significantly, the district court underscored that
“there is no way that the Court can engage in a thorough anal-
ysis of the relevant factual and legal issues in the days
remaining before Brown’s execution date.” Id. This is in no
small part because “it is fair to say that there is no case
involving an Eighth Amendment challenge to a lethal-
                       MORALES v. CATE                     16749
injection protocol in which the factual record is as developed
as the record here.” Id. at 7. “The regulations have been more
than three years in the making . . . .” Id. at 8.

   12. Once again, as with Morales, the court issued a condi-
tional stay order. In its order, the court directed Brown to
advise the court by September 25, 2010 (later extended to
September 26), “whether he elects to be executed by the
injection of all of the drugs specified in Cal. Code Regs. tit.
15 § 3349 et. seq. [the three-drug protocol] or by the injection
of sodium thiopental only.” Id. at 10.

  13. Brown did not make such an election and instead on
September 26, 2010, filed with this court a Motion to Stay
Execution or, alternatively, a Petition for Mandamus.

   14. The district court’s unilateral decision to provide
Brown the choice of a one-drug option was improper. The
one-drug option was not adopted by the State in response to
the conditional order regarding Morales nor in the new proce-
dures revised in response to the Morales litigation. Thus, the
State has not, in its protocol, devised or implemented proce-
dures for the single-drug injection. There is a dispute whether
the State has sufficient supply to implement such an option.
In addition, the State advises that its current supply of sodium
thiopental has an expiration date of October 1, 2010. Further,
the State has understandably not adopted procedures or imple-
mented training on the one-drug option and claims it would
need at least three days to do so. Despite the best of intentions
on the part of the district court to fashion a compromise and
a choice of methods here, imposing on Brown such a choice
between the new three-drug protocol and a one-drug option
never adopted by the State places an undue burden on Brown
and is beyond the power and expertise of the district court at
this juncture. The result in this case should not be driven by
compromise nor by the State’s deadlines superimposed on the
district court’s already pending review of the new execution
protocol.
16750                  MORALES v. CATE
   15. The district court stated in the September 21, 2010
hearing that “Mr. Brown is asserting Eighth Amendment
claims which this court has been unable to finish litigating.”
Compare Baze, 553 U.S. at 41 (“The trial court held extensive
hearings and entered detailed Findings of Facts and Conclu-
sions of Law.”). Of particular importance, “Brown’s federal
claims are virtually identical to those asserted by” Morales.
Sept. 24 Order at 1.

   For these reasons and in light of this background and the
district court’s findings regarding the risk of unconstitutional
pain inhering in the prior three-drug protocol, this matter is
remanded to the district court to determine whether, under
Baze, Brown is entitled to a stay of his execution as it would
be conducted under the three-drug protocol now in effect.
Specifically, the court should address the similarity between
the previous O.P. 770 and Cal. Code Regs. tit. 15 § 3449 et
seq., as well as the court’s statement that, with respect to the
constitutionality of the State’s previous execution protocol, “it
likely would have made the same findings and reached the
same conclusions under the ‘demonstrated risk’ standard”
adopted by the three Justices in Baze. The district court
should also consider the standards for a stay as articulated in
Nelson v. Campbell, 541 U.S. 637, 649-50 (2004).

  REMANDED.
