LaGrand

Opinion by Judge T.G. NELSON; Dissent by Judge PREGERSON.

Arizona death row inmates Walter and Karl LaGrand appeal the district court’s denial of their petitions for writ of habeas corpus. We have jurisdiction of these consolidated appeals pursuant to 28 U.S.C. § 1291 , and we affirm.

I

FACTS AND PROCEDURAL HISTORY

Walter LaGrand (Walter) and Karl LaG-rand (Karl) (collectively “the LaGrands”) were each convicted of first-degree murder, attempted murder in the first degree, attempted armed robbery and two counts of kidnapping. The Arizona Supreme Court gave this account of the crimes in Walter’s appeal:

State v. LaGrand, 153 Ariz. 21 , 734 P.2d 563, 565-66 (1987).

When questioned after their apprehension, Walter made no statements, but Karl confessed to the crimes in two different statements. He stated that he had stabbed Hart-sock and Lopez, but that Walter had not stabbed anyone and that Walter had been out of the room at the time. Following a jury trial, both were convicted on all charges. After considering mitigating and aggravating circumstances, 1 the judge sentenced both defendants to death. The Arizona Supreme Court affirmed the convictions and sentences. State v.…

dissenting:

I dissent because J believe that the LaG-rands’ challenge to Arizona’s lethal gas statute is ripe for review.

The LaGrands are condemned prisoners in Arizona. Under Arizona’s death penalty statute, the LaGrands will be executed by lethal injection unless they choose lethal gas. Ariz.Rev.Stat. § 13-704(B). In their petitions for habeas corpus, the LaGrands argue that execution by lethal gas is cruel and unusual punishment prohibited by the Eighth Amendment.

Because the LaGrands have not yet chosen lethal gas as the method of execution, the majority concludes that the LaGrands’s challenge to the lethal gas statute “is not ripe and cannot be considered.” In Campbell v. Wood, 18 F.3d 662 (9th Cir.1994) (en banc), however, we considered — and rejected — the mirror image of this theory: namely, that an Eighth Amendment challenge to a “choice” statute is nonjusticiable because a prisoner can choose a means of execution that renders the controversy moot. We held, in circumstances almost identical to those involved here, that a prisoner’s challenge to Washington’s death penalty statute was justiciable. Id. at 681 . I can discern no principled distinction between the present…