Samuel Lopez v. Janice Brewer

FILED

FOR PUBLICATION MAY 18 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SAMUEL VILLEGAS LOPEZ, No. 12-16084

Plaintiff - Appellant, D.C. No. 2:12-cv-00245-NVW District of Arizona, v. Phoenix

JANICE K BREWER, Governor of Arizona; CHARLES L. RYAN, Director, AMENDED ORDER Arizona Department of Corrections; RON CREDIO, Warden, Arizona Department of Corrections - Eyman; LANCE R. HETMER, named as: Lance Hetmer/Warden, Arizona Department of Corrections - Florence; UNKOWN PARTIES, named as: IV Team Leader; IV Team Members 1-5; Special Operations Team Leader; Special Operations Team Recorder; Special Operations Team Members 1-5; and Does 1-25,

Defendants - Appellees.

Before: THOMAS, Circuit Judge and Capital Case Coordinator.

A panel of this Court issued an opinion affirming the district court’s denial

of petitioner’s motion for a preliminary injunction and denying his motion for a

stay of execution. Petitioner filed a petition for rehearing and rehearing en…

concurring:

There is profound irony in Lopez’s insistence that his death be painless. This is a description of his crimes, as related by the Arizona Supreme Court:

State v. Lopez, 163 Ariz. 108 , 786 P.2d 959, 962, 966 (1990). “[T]he victim endured great physical and mental suffering over a relatively protracted period of time while she struggled for her life.” State v. Lopez, 175 Ariz. 407 , 857 P.2d 1261, 1271 (1993). Based on what it found to be a vicious and prolonged beating, stabbing, rape and sodomy, the trial judge held that Lopez “murdered the victim in an especially cruel, heinous, and depraved manner.” Id.

The panel delicately omits these facts, as did our previous opinion, which merely referred to the crime as “brutal,” Lopez v. Ryan, 630 F.3d 1198 , 1201 n. 1 (9th Cir.2011), but common decency surely calls on us to acknowledge that Lopez is not the victim here, and whatever pain he may suffer incident to his execution pales in comparison to the agony and terror he inflicted on a defenseless woman whose body he used to sate his lust. Judge Berzon’s dissent and Judges Pregerson’s and Reinhardt’s dissentals obsess about the discomfort Lopez might suffer during his…

concurring in part and dissenting in part:

We find ourselves once again ruling on life and death issues on the eve of an execution. And once again, these issues arise on an appeal of the denial of an emergency motion for a stay of execution sought on the basis that the lethal injection mode of execution as the state will administer it will create such a substantial risk of serious pain as to violate the Eighth Amendment. See Towery v. Brewer, 672 F.3d 650 (9th Cir.2012); Beaty v. Brewer, 649 F.3d 1071 (9th Cir.2011); Landrigan v. Brewer, 625 F.3d 1144 (9th Cir.2010), vacated by — U.S. -, 131 S.Ct. 445 , 178 L.Ed.2d 346 (2010).

In this instance, I cannot help but concur in the majority’s conclusion that Lopez has not at this point in the litigation demonstrated the requisite “serious question” as to whether that his execution will violate the Eighth Amendment if allowed to proceed. I also concur in most of the majority’s reasoning. In particular, Lopez has not proven that during the Towery execution, the pain suffered by Towery— for there assuredly was considerable pain, as the majority’s account of the hour-long difficulty in setting IV lines illustrates— was sufficiently severe…

join, dissenting from the denial of rehearing en banc:

The State of Arizona continues to ignore this court’s frequent requests to adopt a *1093 clear protocol stating the procedures it follows when executing its citizens. See Towery v. Brewer, 672 F.3d 650 (9th Cir.2012)

As Judge Berzon reminds us in her partial dissent concerning the execution of Samuel Lopez, the simple fact remains that this court, the public, defense counsel, and inmates awaiting execution lack a definite understanding of the procedures and protocols the State of Arizona follows in executing its citizens. Because Arizona: (1) does not make known a detailed, written protocol; (2) limits the ability of counsel or witnesses to observe critical stages of the execution process; and (3) restricts its documentation of executions — prisoners awaiting execution and their defense counsel are prevented from obtaining information that could support a successful constitutional challenge to Arizona’s use of lethal injection to execute death row prisoners.

The March 8, 2012 execution of Robert Towery is perhaps the starkest example of Arizona’s flawed procedures. During that execution, Towery remained strapped to the…

join, dissenting from the denial of rehearing en banc:

On multiple occasions in recent months, the State of Arizona has subjected prisoners whose lives it takes — and has subjected this court — to a mockery of the constitutional requirement of due process. In the case of Jeffrey Landrigan, the state an *1095 nounced days before the execution that it planned to use a foreign-source drug and refused “to comply with the district court’s orders to provide ... critical information about the provenance and efficacy of the” drug. Landrigan v. Brewer, 625 F.3d 1132, 1133 (9th Cir.2010) (Wardlaw & W. Fletcher, JJ., concurring in the denial of rehearing en banc). In the case of Donald Beaty, the state announced eighteen hours before the execution that it intended to switch to the use of a drug that it had never tested and in the use of which it had never trained its executioners. Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir.2011) (Reinhardt, J., dissenting from the denial of rehearing en banc). In the cases of Robert Towery and Robert Moormann, the state changed its written execution protocol at the last minute, then changed course yet again, informing the court just hours before argument…

Order; Concurrence by Chief Judge KOZINSKI; Dissent by Judge PREGERSON; Dissent by Judge REINHARDT.

AMENDED ORDER

A panel of this Court issued an opinion affirming the district court’s denial of petitioner’s motion for a preliminary injunction and denying his motion for a stay of execution. Petitioner filed a petition for rehearing and rehearing en banc. The Warden elected not to file an optional response.

Pursuant to the rules applicable to capital cases when an execution date has been scheduled, a deadline was established by which any judge could request a vote on whether the panel’s opinion should be reheard en banc. A judge timely requested a vote on the petition for rehearing en banc. A majority of the judges eligible to vote did not vote in favor of rehearing en banc. Judges Ikuta, Murguia, and Nguyen were recused.

Therefore, the Petition for Rehearing En Banc is DENIED. En banc proceedings with respect to the panel opinion are concluded.