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Plaintiff's Reply Brief and Reply to Oppositon to Motion for Stay of Execution

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Plaintiff's Reply Brief and Reply to Oppositon to Motion for Stay of Execution C.A. NO. 06-99002 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL ANGELO MORALES, D.C. Nos. C 06 0219 (JF), C 06 0926 (JF) Petitioner-Appellant, DEATH PENALTY CASE v. RODERICK Q. HICKMAN, Secretary EXECUTION IMMINENT: of the California Department of Execution Date February 21, Corrections; STEVEN ORNOSKI, 2006 Warden, San Quentin State Prison, San Quentin, CA; and DOES 1-50, Respondents-Appellees. APPELLANT’S REPLY BRIEF AND REPLY TO OPPOSITION TO MOTION FOR STAY OF EXECUTION APPEAL FROM DENIAL OF PRELIMINARY INJUNCTION BY THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA David A. Senior Richard P. Steinken McBreen & Senior Janice H. Lam 1880 Century Park East, Suite 1450 Stephanie L. Reinhart Los Angeles, CA 90067 Jenner & Block LLP Phone: (310) 552-5300 One IBM Plaza Fax: (310) 552-1205 Chicago, IL 60611-7603 [email protected] Phone: (312) 923-2938 Fax: (312) 840-7338 [email protected] John R. Grele Law Offices of John R. Grele Ginger D. Anders 703 Market Street, Suite 550 Jenner & Block LLP San Francisco, CA 94103 601 Thirteenth Street, NW Phone: (415) 348-9300 Suite 1200 South Fax: (415) 348-0364 Washington DC 20005-3823 [email protected] Phone: (202) 639-6000 Fax: (202) 639-6066 [email protected] Attorneys For Petitioner-Appellant Michael Angelo Morales TABLE OF CONTENTS I. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING MR. MORALES INJUNCTIVE RELIEF............................1 II. MR. MORALES’ EXECUTION SHOULD BE STAYED IN LIGHT OF THE COURT’S RECOGNITION THAT PROCEDURE NO. 770 IS FLAWED....................................................4 III. APPELLEES HAVE NOT SOLVED THE PROBLEMS WITH PROCEDURE NO. 770 WITH THE ADDITION OF A MONITOR..............................................................................................6 IV. THE DISTRICT COURT HAS IMPROPERLY INJECTED ITSELF INTO THE ADMINISTRATIVE PROCESS. .......................11 V. APPELLEES’ BRIEF REFERS TO NUMEROUS FACTS NOT OF RECORD AND HAS NUMEROUS FACTUAL MISTATEMENTS................................................................................12 VI. THE FACTUAL RECORD OF PROBLEMS WITH PROCEDURE NO. 770 IS OVERWHELMING..................................17 VII. A STAY OF EXECUTION IS REQUIRED…………………………….20 VIII. CONCLUSION.....................................................................................27 -ii- TABLE OF AUTHORITIES CASES Barefoot v. Estelle, 463 U.S. 880 (1983) .......................................................................................21 Beardslee v. Woodford, 395 F.3d 1064 (9th Cir. 2005).........................................2, 3, 4, 18, 23, 24 California First Amendment Coalition v. Woodford, 299 F.3d 868 (9th Cir. 2002)...........5, 12, 22 Cooper v. Rimmer, 379 F.3d 1029 (9th Cir. 2004) ......................................................................2, 4 Department of Housing & Urban Development v Rucker, 535 U.S. 125 (2002) ............................1 Does 1-5 v. Chandler, 83 F.3d 1150 (9th Cir.1996) ........................................................................1 Fierro. v. Terhune, 147 F.3d 1158 (9th Cir. 1998)........................................................................23 G.C. and K.B. Investments, Inc. v. Wilson, 326 F.3d 1096 (9th Cir. 2003).....................................1 Gomez v. U.S. District Ct. N. D. Cal., 503 U.S. 653 (1992).............................................2, 3, 4, 23 Harris v. Board of Supervisors, 366 F.3d 754 (9th Cir. 2004) ........................................................1 Malone v. Calderon, 167 F.3d 1221 (9th Cir. 1999) .....................................................................21 Martinez-Villareal v. Stewart, 118 F.3d 625 (9th Cir. 1997) ........................................................21 Nelson v. Campbell, 541 U.S. 637 (2004) ...................................................................................3, 4 Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224 (1974) ...........................12 In re Public Service Co. of New Hampshire, 963 F.2d 469 (1st Cir. 1992) ..................................25 Rucker. v. Davis, 237 F.2d 1113 (9th Cir. 2001), rev'd on other grounds.......................................1 Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750 (9th Cir.1982) ......................1 Stone v. City and County of San Francisco, 968 F.2d 850 (9th Cir. 1992)...................................12 Taylor v. Crawford, No. 06-1397 (8th Cir.) ............................................................................23, 25 United States v. Farrar, 414 F.2d 936 (5th Cir. 1969) ....................................................................1 iii Wilson v. Watt, 703 F.2d 395 (9th Cir. 1983) ..................................................................................1 Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003) ..........................................................................25 STATUTES Fed.R.App.P. 32(a)(7)....................................................................................................................28 U.S. Const. Article III ................................................................................................................25 Cal. Pen. Code sec. 3604 ...............................................................................................................23 Cal. Pen. Code section 3605(a)..............................................................................16, 17, 18, 19, 20 Title 15 Cal. Code Regs. Sec 3349(a)............................................................................................23 iv ARGUMENT I. THE DISTRICT COURT ABUSED ITS DISCRETION BY DENYING MR. MORALES INJUNCTIVE RELIEF. This Court reviews the denial of a preliminary injunction for abuse of discretion. Harris v. Board of Supervisors, 366 F.3d 754, 760 (9th Cir. 2004); G.C. and K.B. Invs., Inc. v. Wilson, 326 F.3d 1096, 1107 (9th Cir. 2003). A district court “necessarily abuses its discretion when it bases its decision on an erroneous legal standard or on clearly erroneous findings of fact.” Rucker. v. Davis, 237 F.2d 1113, 1118 (9th Cir. 2001)(en banc), rev’d on other grounds, Dep’t of Hous. & Urban Dev. v Rucker, 535 U.S. 125 (2002). A district court also errs if, in applying the appropriate legal standards, the court misapprehends the law with respect to the underlying issues in litigation. Wilson v. Watt, 703 F.2d 395, 398 (9th Cir. 1983); Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752 (9th Cir.1982). If the district court has relied on an erroneous legal premise in decid ing to deny a preliminary injunction, this Court must review the underlying issue of law on a de novo basis. Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996). See also United States v. Farrar, 414 F.2d 936, 938 (5th Cir. 1969)(reverse denial of injunction because “we are concerned with the lower court's characterization of the evidence, and conclusions drawn from the evidence, which we find to be clearly erroneous.”) 1 In the present case, the District Court recognized that no court around the country to date has found lethal injection to be unconstitutional, but observed that “[a]t the same time, it should be noted that the record now before this Court, which includes both additional expert declarations and detailed logs from multiple executions in California, contains evidence of a kind that was not presented in these earlier cases.” ER at 308. After considering this more comprehensive body of evidence, the Court conceded that eyewitness statements that many inmates continue to breathe long after breathing should have ceased “cannot simply be disregarded on its face,” that notations in execution logs indicating that the breathing did not cease as expected in at least six out of thirteen executions “raises at least some doubt as to whether the protocol actually is functioning as intended,” and that evidence of other “anomalies” in the record “raises additional concerns as to the manner in which the drugs used in the lethal-injection protocol are administered.” ER at 311. On that basis, the District Court concluded “that Plaintiff has raised more substantial questions than his counterparts in Cooper and Beardslee.” ER at 312. Having recognized this growing body of evidence, particularly from California, that the lethal injection protocol creates a significant risk that inmates will be subjected to a painful execution in violation of the Eighth Amendment, the District Court refused to grant a preliminary injunction relying exclusively on the State’s “strong interest in proceeding with its judgment,” under Gomez v. U.S. Dist. 2 Ct. N. D. Cal., 503 US. 653, 654 (1992). Such reliance however is badly misplaced in the circumstances of this case. In Gomez, the Supreme Court noted that petitioner’s claim for relief followed four prior federal habeas petitions, that the claim could have been brought more than a decade earlier, and that petitioner was guilty of abusive delay, “which has been compounded by last minute attempts to manipulate the judicial process.” 503 U. S. at 654. Thus, central to the Supreme Court’s holding was the “last minute nature of an application” and the “obvious attempt at manipulation.” Id. The District Court here acknowledged that Mr. Morales’ request for equitable relief bears no evidence of manipulation or delay. The Court noted that in pursuing this action, Mr. Morales was even more diligent than plaintiff had been in Beardslee v. Woodford, 395 F.3d
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