                                                                              FILED
                               FOR PUBLICATION                                 SEP 27 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL ANGELO MORALES,                           No. 10-99019

              Plaintiff,                          D.C. No. 5:06-cv-00219-JF
                                                  Northern District of California,
  and                                             San Jose

ALBERT GREENWOOD BROWN,
                                                  ORDER
              Plaintiff - Appellant,

  v.

MATTHEW CATE,

              Defendant - Appellee.



Before: KLEINFELD, McKEOWN, and FISHER, Circuit Judges.

        1.   This appeal in its present posture is not about the guilt of Albert

Greenwood Brown. He was found guilty of a horrific crime and his conviction has

been sustained by both state and federal courts. Nor is this proceeding about the

constitutionality 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

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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,” 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 proceeding, 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. Timing 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


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“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 monitor 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 intravenously.” Order on Defendants’

Motion to Proceed with Execution Under Alternative Condition at 3, Morales v.

Hickman (Nos. 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 evidentiary 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).


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The court also found that implementation of the protocol “lack[ed] both reliability

and transparency” 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 Constitution.” 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

injection 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




                                           4
Order”). The district court found that Brown’s intervention and pursuit 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 articulating a standard

requiring the prisoner to establish a “substantial risk of serious harm,” id. at 52,

and stating that “[a] stay of execution may not be granted . . . unless the

condemned 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


                                            5
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 analysis 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-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 conditional 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.




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      14.    The district court’s decision to provide Brown the choice of a one-

drug option is not consistent with California state law and procedures. California

law does not provide the condemned a choice between a three-drug protocol or a

one-drug option. The only choice provided is between lethal gas or lethal

injection. Cal. Penal Code § 3604 (West 2010). Other states also provide the

condemned a choice of methods of execution. See, e.g., Va. Code Ann. § 53.1-234

(West 2010) (choice between electrocution or lethal injection); Wash. Rev. Code

§ 10.95.180 (West 2010) (choice between intravenous injection or hanging). The

one-drug option was not adopted by the State in response to the conditional order

regarding Morales nor in the new procedures revised in response to the Morales

litigation. Thus, the State has not, in its protocol, devised or implemented

procedures 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 implemented

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


                                           7
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.

      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 Conclusions 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


                                            8
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.




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