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, Northern District of

Plaintiff-Appellant,  California,

San Jose

v.

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 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

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
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 “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 threedrug 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.

16746 MORALES v. CATE
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). 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 Order”).

The district court found that Brown’s intervention and pursuit

MORALES v. CATE 16747
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 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 lethal16748 MORALES v. CATE
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.

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 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 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. 

MORALES v. CATE 16749
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 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.

16750 MORALES v. CATE