Charles Van Cott (#009877)

Timothy A. Nelson (#016274)

BROWN & BAIN, P.A.

2901 North Central Avenue

Post Office Box 400

Phoenix, Arizona 85001-0400

(602) 351-8000

Attorneys for Petitioner
 
 

Jose Jesus Ceja petitions this Court for a writ of habeas corpus and requests a stay of his execution, currently scheduled for 12:05 a.m. on Wednesday, January 21, 1998. This petition raises important new facts and legal circumstances that were not and could not have been raised in his prior habeas petition filed with this Court in the mid-1980s. These issues include:

the cruel and unusual nature of an execution carried out after forcing an individual to wait for 23 years in solitary confinement, enduring the privations of death row and, in effect, suffering the death penalty after serving a life sentence a wait so long that even the judge who imposed the death sentence in Ceja's case, former Superior Court Judge A. Melvin McDonald, now believes that death is too harsh a punishment;

the cruel and unusual nature of the lethal injection protocol that Arizona currently uses in death penalty cases, which produced horrific results in at least three of the seven executions in which it was used.

These concerns each violate the Eighth Amendment's prohibition against cruel and unusual punishment.

1. Petitioner Jose Jesus Ceja, prison number 33603, is currently imprisoned in the Arizona State Prison complex at Florence, Arizona.

2. He was convicted in Maricopa County Superior Court of two counts of murder in the first degree following a trial by jury over which Judge Kimball Rose presided.

3. On December 19, 1974, Judge Rose sentenced Ceja to death.

4. On appeal, the Arizona Supreme Court reversed the conviction. State v. Ceja, 113 Ariz. 39, 546 P.2d 6 (1976).

5. Upon remand, Ceja was convicted of two counts of murder in the first degree following a trial by jury over which Judge A. Melvin McDonald presided.

6. On June 25, 1976, Judge McDonald sentenced Ceja to death.

7. The Arizona Supreme Court affirmed Ceja's conviction and death sentence. State v. Ceja, 115 Ariz. 1274, 565 P.2d 1274, cert. denied, 434 U.S. 975 (1977).

8. As a result of its decision in State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert. denied, 440 U.S. 924 (1979), the Arizona Supreme Court remanded all death row inmates to superior court for resentencing. As a result, Ceja was subjected to a third aggravation/mitigation hearing. Once again, Judge McDonald presided.

. . .

9. On July 17, 1979, Judge McDonald again sentenced Ceja to death.

10. The Arizona Supreme Court affirmed Ceja's death sentence. State v. Ceja, 126 Ariz. 35, 612 P.2d 491 (1980).

11. On May 27, 1980, in the action entitled Knapp v. Cardwell, No. 78-385 PHX-CAM (D. Ariz.), the United States District Court stayed the execution of several death row inmates including Ceja. That matter was finally resolved and the stay nullified on November 29, 1982.

12. On January 12, 1983, Ceja filed a petition for post-conviction relief in Maricopa County Superior Court. At that time, Ceja was represented by the same lawyer who had represented him at the 1976 trial and sentencing, the 1976 direct appeal, the 1979 sentencing and the 1980 direct appeal.

13. On June 24, 1983, Ceja's counsel filed a motion to withdraw as counsel and a request to appoint new counsel for Ceja to allow, among other things, a challenge to the effectiveness of withdrawing counsel. The court granted the motion and appointed new counsel to represent Ceja.

14. On April 16, 1984, Ceja's new counsel filed a two-page supplement to Ceja's petition for post-conviction relief.

15. The superior court dismissed the petition on June 27, 1984.

16. The Arizona Supreme Court denied the petition for review from that dismissal on October 15, 1984.

17. On December 14, 1984, the United States District Court for the District of Arizona stayed an execution date of December 17, 1984, pending the resolution of the petition for writ of habeas corpus filed on Ceja's behalf.

18. On January 4, 1985, at the request of United States District Judge Carl A. Muecke, Brown & Bain filed a notice of appearance as Ceja's counsel of record in the federal habeas proceeding.

19. On March 28, 1985, the District Court stayed the federal habeas proceeding to allow Ceja to pursue another Rule 32 proceeding in Maricopa County Superior Court.

20. On April 11, 1985, Ceja filed his second petition for post-conviction relief and request for evidentiary hearing in Maricopa County Superior Court.

21. On September 25, 1985, the superior court denied Ceja's second petition for post-conviction relief.

22. On October 10, 1985, Ceja filed a motion for rehearing on the denial of his second petition.

23. On December 23, 1985, Ceja filed a supplemental petition for post-conviction relief.

24. On March 28, 1986, the superior court denied the supplemental petition for post-conviction relief.

25. On April 28, 1986, Ceja filed a petition for review in the Arizona Supreme Court.

26. On November 5, 1986, the Arizona Supreme Court denied review, although Justice Feldman voted to grant review.

27. On November 19, 1986, Ceja filed an amended petition for writ of habeas corpus.

28. On May 6, 1987, the State moved to dismiss certain claims on the grounds of procedural default.

29. After briefing, the District Court heard argument on the motion on March 7, 1988. On October 18, 1988, the district court granted the motion to dismiss.

30. On November 9, 1988, the district court stayed its October 18, 1988 Order pending the resolution of Ceja's motion for reconsideration.

31. On July 22, 1989, the district court granted Ceja's motion for reconsideration in part and then stayed implementation of its October 18, 1988 and November 9, 1988 Orders "and any further action in this matter" pending receipt of the mandate from the Ninth Circuit in Adamson v. Ricketts, 865 F.2d 1011 (9th Cir. 1988) (en banc). At that point, Adamson had invalidated portions of Arizona's death penalty, and the district court decided to await the disposition of a petition for certiorari filed in the United States Supreme Court.

32. As a result of the grant of the petition for certiorari in Adamson, no further significant activity took place in the federal habeas proceeding until December 18, 1991 when the State filed a motion for reconsideration of the July 22, 1989 Order.

33. On July 9, 1993, the district court granted the motion for reconsideration in part, ordered Ceja to file a cause and prejudice statement and ordered the State to file a dispositive motion on remaining claims.

34. Ceja filed his cause and prejudice statement on August 9, 1993 and the State filed its motion for summary judgment on November 8, 1993.

35. On May 5, 1994, the district court dismissed Ceja's petition for writ of habeas corpus.

36. Ceja appealed to the Ninth Circuit and filed his opening brief on October 6, 1994.

37. The Ninth Circuit affirmed the district court decision on October 8, 1996, with one judge dissenting. Ceja v. Stewart, 97 F.3d 1246 (9th Cir. 1996) The Ninth Circuit denied Ceja's petition for rehearing on June 13, 1997.

38. The United States Supreme Court denied Ceja's petition for writ of certiorari on November 10, 1997, but has not yet ruled on a pending petition for rehearing.

39. On January 2, 1998, Ceja filed his third petition for post-conviction relief in Maricopa County Superior Court raising four issues for relief that had arisen since his second petition in 1985, including the two principal grounds alleged in this petition.

40. On January 8, 1998, the Maricopa County Superior Court dismissed on the merits Ceja's third petition for post-conviction relief (a copy of the order is attached as Exhibit A).

41. On January 13, 1998, Ceja filed a petition for review of the dismissal with the Arizona Supreme Court. The Arizona Supreme Court declined review (a copy of that order is attached as Exhibit B).

42. On January 17, 1998, Ceja filed an application for writ of habeas corpus and request for stay of execution directly with the Ninth Circuit raising only the issue of actual innocence of the death penalty.

43. On January 18, 1997, the Ninth Circuit dismissed Ceja's application, but specifically noted that "[t]his dismissal is without prejudice to Ceja's filing a . . . petition for relief directly with the district court as to any claims to which the AEDPA does not apply, see Martinez-Villareal v. Stewart, 118 F.3d 628 (9th Cir. 1997), with respect to any of the other claims that Ceja has exhausted in state court." A copy of the Ninth Circuit's January 18, 1998 Order is attached to this application as Exhibit C.

I. THIS APPLICATION IS NOT BARRED PROCEDURALLY.

As the Ninth Circuit's January 18, 1998 Order makes clear, this Court may hear claims that have been exhausted in State court and that are not precluded by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The claims asserted herein have been decided on the merits at the State level. [See Exhibit A] Furthermore, as set forth below, this petition is not barred by the AEDPA.

A. The AEDPA Does Not Apply to This Petition.

1. AEDPA does not apply retroactively.

Ceja filed his only prior habeas petition in 1984. The district court stayed that petition and, following the appointment of new counsel for Ceja and an amendment to the petition (both occurring in the 1980's), did not decide the petition until 1994. The appeal of that decision was not resolved until 1997. At the time Ceja filed his original habeas petition, he did not know and could not have foreseen that Congress would enact amendments to the habeas statute in 1996 (in the form of the AEDPA) that would restrict his ability to challenge other aspects of his sentence through subsequent habeas actions. To avoid such an unfair surprise, the United States Supreme Court recently made clear that the AEDPA's amendments to Chapter 153 of Title 28 of the United States Code (including 28 U.S.C. 2244) "generally apply only to cases filed after the Act became effective." Lindh v. Murphy, 117 S. Ct. 2059, 2069 (1997); see also Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.) ("the amendments to Chapter 153 of Title 28 of the United States Code . . . do not apply to cases filed in the federal courts of this Circuit prior to the Act's effective date"), cert. denied, 114 S. Ct. 1294 (1997).

The AEDPA itself has no provisions suggesting that it could be applied retroactively to cases where the initial petition was filed prior to the AEDPA's enactment. See Lindh, 117 S. Ct. at 2064 (a new legislative enactment will not be allowed to have retroactive effect if it does not contain the "clear statement required to apply a statute in the disfavored retroactive way"). Thus, it is inappropriate under Lindh and Jeffries (and it would be patently unfair) to require Ceja to meet the more stringent requirements of the AEDPA for bringing this successive habeas application.

2. AEDPA does not apply to claims that could not properly be raised in the first habeas petition.

Both of the claims Ceja raises in this petition are fully at issue only when execution is imminent i.e., after the first habeas petition is resolved. Until execution is imminent, Ceja does not know: (i) how long he will be on death row and (ii) the actual execution protocol that will be used. Thus, Ceja submits he faces a Catch-22 similar to that faced by the petitioner in Martinez-Villareal v. Stewart, 118 F.3d 628 (9th Cir. 1997). Although these issues relate only to the death sentence, they could not, as a practical or effective matter, have been brought in the first habeas petition. If the AEDPA applies, the issues could never be presented because they challenge only the death sentence, not the underlying conviction. That effective prohibition dictates that the AEDPA should not apply under the rationale of Martinez-Villareal.

B. This Application is Authorized Under Prior Law.

The pre-AEDPA version of 28 U.S.C. 2244 provided that a successive habeas application could be considered if it:

alleges and is predicated on a factual or other ground not adjudicated on the hearing of the earlier application for the writ, and [] the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.

28 U.S.C. 2244 (b) (West 1996).

This petition plainly meets the old 2244 (b) standard. The principal claims raised herein that (i) 23 years on death row followed by execution and (ii) Arizona's lethal injection protocol are each cruel and unusual punishments in violation of the Eighth Amendment were not and could not properly have been raised in Ceja's only prior habeas application with this Court.

With respect to the 23 years, Ceja did not know and could not possibly have known in 1984 that he would not be put to death until 1998; thus in 1984, he could not have raised the issue that 23 years on death row is cruel and unusual. Indeed, more than half of the 23 years which support Ceja's claim herein have occurred after he filed his only prior habeas application with this Court.

With respect to lethal injection, Ceja did not know Arizona's lethal injection protocol in 1984 and again could not have challenged it at that time. Nor did evidence exist then, as it does now (see infra), that such a high percentage of Arizona inmates executed in this manner have actually suffered during the lethal injection process.

Accordingly, Ceja did not "on the earlier application deliberately [withhold] the newly asserted ground or otherwise abused the writ," and he is therefore entitled to have this application heard pursuant to 28 U.S.C. 2244 (b) as it existed before the enactment of the AEDPA.

II. GROUNDS FOR RELIEF

A. Executing Ceja After 23 Years of Incarceration on Death Row is Cruel and Unusual Punishment.

Ceja has been incarcerated on death row since December 19, 1974 twenty-three (23) years. He has spent more time on death row than any other inmate in Arizona, possibly more than any other inmate in the United States. Ceja has spent more than half his life on death row, entering at the age of 19 and living there until his present age of 42. At the start, he was a irresponsible, street-tough teenager without a high school degree. He is now a middle-aged man with a GED and several college courses to his credit who has held employment as a porter on death row and, later, as a law clerk in the law library at the prison.

Ceja has suffered the anxiety of impending death and the greatly restricted activity allowed death row inmates for 23 years. During that time, Ceja has had an execution date set at least five times February 8, 1978, September 24, 1980, May 11, 1983, December 19, 1984 and January 21, 1998. For 23 years, Ceja has lived in solitary confinement, much of it in the typical death row cell on Cell Block 6 at the Arizona State Prison in Florence. Those cells are little more than a 7' x 10' windowless concrete box with a metal sink and toilet and a concrete slab for a bed. Activity outside that cell is typically limited to 3 one-to-two hour periods per week in which the inmate may shower or exercise. Visitations and phone privileges are much more limited than those for the general prison population. Many of a death row inmate's neighbors are deeply disturbed men responsible for some of the most notorious murders in Arizona.

If Ceja is executed, his de facto sentence will be 23 years of solitary confinement in the most horrible portion of the prison death row followed by execution. There has never been such a sentence imposed in this country or any other, to our knowledge. Neither Arizona nor any other state would ever enact a law calling for such a punishment. Indeed, Melvin McDonald the judge who imposed the death sentences believes that execution after 23 years on death row is cruel and unusual. [Affidavit of A. Melvin McDonald ("McDonald Aff.") (attached at Exhibit D), ?? 11, 12] McDonald states that "the justification underlying my imposition of the death sentence on Ceja will not be met by executing Ceja now. Executing Ceja after he has spent 23 years on death row does not provide adequate retribution or deterrence to allow the death penalty to stand." [Id., 11] Thus, the judge who initially decided the appropriate punishment for Ceja's crimes based on his first-hand participation in the trial and sentencing now believes that executing Ceja after 23 years on death row is too harsh a punishment for those crimes.

We submit that executing Ceja after imprisoning him for 23 years on death row would be so extraordinary and so much more cruel than execution itself that it would violate the Eighth Amendment to the United States Constitution and Article II, 15 of the Arizona Constitution. See Lackey v. Texas, 115 S. Ct. 1421 (1995) (Stevens and Breyer, JJ., memorandum commenting on denial of certiorari); State v. Richmond, 180 Ariz. 573, 575-78, 886 P.2d 1329, 1331-34 (1994) (commuting death sentence, in part, because of the 20-year delay on death row).

Although "the punishment of death does not invariably violate the Constitution," Gregg v. Georgia, 428 U.S. 153, 169 (1976), the death penalty, like any other punishment, may be unconstitutional if the manner in which it is imposed and inflicted "involve[s] unnecessary and wanton infliction of pain." Estelle v. Gamble, 429 U.S. 97, 102-3 (1976). A punishment "is 'excessive' and unconstitutional [if] . . . it . . . makes no measurable contribution to acceptable goals of punishment and enhances nothing more than the purposeless and needless imposition of pain and suffering . . . ." Coker v. Georgia, 433 U.S. 590, 592 (1977).

"Punishments are cruel when they involve torture and lingering death." In Re Kemmler, 136 U.S. 436, 447 (1890). We do not believe it an exaggeration to call a lifetime on death row twenty-three years, or more than half of one's life "torture."

[W]e know that mental pain is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and actual infliction of death." Furman v. Georgia, [408 U.S. 238, 287-288 (1972) (Brennan, J., concurring)]. "[T]he process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture," People v. Anderson, [493 P.2d 880 (Cal.), cert. denied, 407 U.S. 958 (1972)], and "the onset of insanity while awaiting execution of a death sentence is not a rare phenomenon." Solesbee v. Balkcom, [339 U.S. 9, 14 (1950) (Frankfurter, J., dissenting)].

District Attorney for the Suffolk District v. Watson, 411 N.E.2d 1274, 1283 (Mass. 1980).

Whatever one believes about the cruelty of the death penalty itself, this violence done to the prisoner's mind must afflict the conscience of enlightened government and give the civilized heart no rest.

Id. at 1291 (Liocos, J., concurring) (footnotes omitted); see also id. at 1287 (Braucher, J., concurring).

In addition to the extraordinary, extended pain inherent in such a long wait for death, it is difficult to see how carrying out a death sentence after so long would further the two purposes commonly associated with capital punishment: deterrence and retribution. See Gregg v. Georgia, 428 U.S. at 183. Surely the execution of this one man, more than two decades after the crime for which he was condemned, can have no deterrent purpose. Cf. Furman v. Georgia, 408 U.S. at 312 (White, J., concurring). Nor, in any realistic sense, could it serve any legitimate purpose of retribution. In the words of Melvin McDonald, the judge who imposed Ceja's death sentence, "[e]xecuting Ceja after he has spent 23 years on death row does not provide adequate retribution or deterrence to allow the death penalty to stand." [McDonald Aff., 11] See Furman v. Georgia, 408 U.S. at 312 (White, J., concurring).

The Eighth Amendment to the United States Constitution both (i) forbids modes of punishments that were considered cruel and unusual at the time the framers adopted the Bill of Rights, Ford v. Wainwright, 477 U.S. 399, 405 (1986); see also Penry v. Lynbaugh, 492 U.S. 302, 330 (1989); Stanford v. Kentucky, 492 U.S. 361, 368 (1989), and (ii) prohibits the government from wielding its power over the life and death of a condemned person in any way that is offensive to evolving common standards of decency. Gregg v. Georgia, 428 U.S. at 171; Furman v. Georgia, 408 U.S. at 271; Trop v. Dulles, 356 U.S. 86, 101 (1958). Carrying out the death sentence of Mr. Ceja now would violate both Eighth Amendment standards.

At the time the Bill of Rights was adopted, the Anglo-American legal tradition had uniformly denounced undue delays between death sentences and executions as cruel and unusual. Although there is little direct evidence of what the Framers of our Eighth Amendment specifically considered to be "cruel and unusual punishment," see Furman, 408 U.S. at 258-62 (Brennan, J., concurring), precedents from 18th Century English criminal jurisprudence, which has a direct bearing on what the framers intended in drafting the Bill of Rights, plainly indicate that inordinate delay in carrying out an execution was considered "cruel and unusual." See Blackstone's Commentaries on the Laws of England, Book IV, at reprinted in 2 Jones, Blackstone at 2650 (1976) ("It has been well observed, [footnote], that it is of great importance, that [capital] punishment should follow the crime as early as possible") (emphasis added); Beccaria, Essay on Crimes and Punishments, ch. XIX at 72-76 (5th ed. 1804) (". . . because the privation of liberty, being a punishment [itself], ought to beinflicted before condemnation [i.e., capital punishment], but for as short a time as possible"). As a recent decision by the British Privy Council (the highest judicial body in the United Kingdom) has shown, the legal tradition rooted in both the 1689 English Declaration of Rights and the principles of 18th century English criminal jurisprudence held that forcing a condemned man to wait many years between sentencing and actual execution is illegal "inhumane or degrading punishment." See Pratt and Morgan v. Attorney General of Jamaica, 2 A.C. 1, 16, 20 (Privy Council Nov. 2, 1993). The British House of Lords Privy Council concluded:

[A] State that wishes to retain capital punishment must accept the responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve. It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure. If the appellate procedure enables the prisoner to prolong the appellate proceedings over a period of years, the fault is to be attributed to the appellate system that permits such delay and not to the prisoner who takes advantage of it. Appellate procedures that echo down the years are not compatible with capital punishment.

. . . .

The application of the appellants to appeal to the Judicial Committee of the Privy Council and their petitions to the two human rights bodies do not fall within the category of frivolous procedures disentitling them to ask the Board to look at the whole period of delay in this case. The total period of delay is shocking and now amounts to almost fourteen years. It is double the time that the European Court of Human Rights considered would be an infringement of Article 3 of the European Convention and their Lordships can have no doubt that an execution would now be an infringement of section 17(1) of the Jamaican Constitution.

To execute these men now after holding them in custody in an agony of suspense for so many years would be inhuman punishment within the meaning of section 17(1). In the last resort the courts have to accept the responsibility of saying whether the threshold has been passed in any given case and there may be difficult borderline decisions to be made. This, however, is not a borderline case. The delay in this case is wholly unacceptable and this appeal must be allowed.

Pratt and Morgan v. The Attorney General for Jamaica, supra at 20.

The courts of two states, Massachusetts and California, have found the death penalty to violate their state constitutions in part on the ground that the inevitable delays between condemnation and execution are unacceptably cruel. See District Attorney of Suffolk District v. Watson, 411 N.E.2d at 1274; People v. Anderson, 493 P.2d 880 (Cal.), cert. denied, 407 U.S. 958 (1972). This comports growing body of decisions of international courts that support that view, e.g., Soering v. United Kingdom, 11 EHRR 439 (1989) (excessive delays in executing death sentences in the United States violate the European Human Rights Convention Charter and forbid extradition in capital cases). Such authority from other countries should weigh heavily in determining whether the proposed execution of Mr. Ceja after more than two decades could possibly comport with civilized standards in the United States.

. . .

Additionally, executing Jose Ceja after more than 23 years on death row would offend modern standards of common decency, violating another Eighth Amendment principle. First, carrying out the execution after having forced Mr. Ceja to serve a 23-year prison sentence basically would amount to a de facto imposition of both a "life" sentence and a death sentence. See A.R.S. 13-454 (West Supp. 1974) (punishment for first-degree murder is either death sentence or life imprisonment without possibility of parole for 25 years); A.R.S. 13-902(A) (West Supp. 1978) (same). Lengthy confinement on death row inherently entails torturous psychological agony. Lackey, 115 S. Ct. at 1421 n.* (citing cases). Mr. Ceja has lived his entire adult life as a condemned man. The psychological torture stemming from 23 years on death row is yet another de facto and illegitimate punishment in addition to the death sentence.

Second, this psychological torture violates the Eighth Amendment bar against the

infliction of any unnecessary or gratuitous pain in the mode of carrying out the death penalty. See Gregg v. Georgia, 428 U.S. at 170-71 (in holding that capital punishment may be constitutional, the Court expressly noted that unnecessary lingering pain in the modes of execution i.e., those that are torturous or barbaric violates the Eighth Amendment); Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 463-64 (1947); In re Kemmler, 136 U.S. at 447.

Third, in the 23 years Mr. Ceja has definitively demonstrated his non-violent character by living without incident and even as much as is possible on death row honorably and with dignity. He has educated himself, earning a GED and taking college courses. For much of his time on death row, he has worked in the responsible and trusted positions of porter and law library clerk. To kill a man after he has seized an opportunity to redeem himself and has demonstrated his human worth and dignity, elevates form over substance to the point of barbarity and is thus deeply offensive to the Eighth Amendment. It is precisely such "freakish" imposition of death that Gregg and Furman condemn as intolerable in a civilized society. Gregg, 428 U.S. at 188; Furman, 408 U.S. at 310 (Stewart J., concurring).

Fourth, as already discussed, carrying out the execution in the circumstances of this case would serve no purpose. "[A]fter such an extended time, the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted." Lackey, 115 S. Ct. at 1421; see McKenzie v. Day, 57 F.3d 1461, 1484-85 (9th Cir.) (Norris, J., dissenting), en banc op. adopting panel decision, 57 F.3d 1493 (9th Cir.), cert. denied, 514 U.S. 1104 (1995). Any "need" for retribution, such as it was, is gone. Moreover, the example is lost. Any "additional deterrent effect from an actual execution now, on he one hand, as compared to [23] years on death row followed by the prisoner's continued incarceration for life, on the other, seems minimal." Lackey, 115 S. Ct. at 1421-22; Coleman v. Balkcom, 451 U.S. at 952 (Stevens, J., memorandum respecting denial of certiorari); see McKenzie, 57 F.3d at 1484-85 (Norris, J., dissenting).

As Justice White reasoned in Furman:

The imposition and execution of the death penalty are obviously cruel in the dictionary sense. But the penalty has not been considered cruel and unusual punishment in the constitutional sense because it was thought justified by the social ends it was deemed to serve. At the moment that it ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment.

Furman v. Georgia, 408 U.S. at 312-13 (White, J., concurring) (emphasis added); see also Lackey, 115 S. Ct. at 1422.

Finally, Ceja recognizes that other courts have rules that certain periods of incarceration on death row followed by execution have not constituted cruel and unusual punishment. Not one of those cases, however, presented evidence of the sentencing judge's belief that execution after the extended incarceration was cruel and unusual. Joe Ceja has done so. Such a statement by the sentencing judge deserves extraordinary weight because the sentencing judge is most intimately familiar with the crimes and all circumstances underlying the imposition of the death sentence. If the sentencing judge believes the inmate has been on death row too long to be executed, then an execution would be cruel and unusual punishment.

B. Arizona's Lethal Injection Execution Process is Cruel and Unusual.

There are many different ways to execute death row prisoners by lethal injection. Different combinations of different pharmaceuticals administered in different proportions and in different order provide different impacts on the condemned prisoner. Arizona has now executed several inmates using a particular lethal injection protocol that causes significant psychological and physical suffering, giving the prisoner the feeling of slow suffocation and sharp burning sensations in his veins as he remains conscious to his death. [See Affidavit of Edward A. Brunner, Ph.D. ("Brunner Aff.") (attached at Exhibit E (the original affidavit was filed in United States District Court for the District of Arizona, Case No. CIV-97-0135-PHX-SMM))] It also is apparent that numerous other protocols could be used to execute prisoners that do not inflict such suffering. Veterinarians have euthanized animals in much more humane ways. Controversial physician Dr. Jack Kevorkian has developed a much more humane method for assisted suicides. Yet Arizona persists in using a protocol that falls far short of the humanity of these methods. See generally, Denno, Deborah, "Getting to Death: Are Executions Constitutional?," 82 Iowa Law Review 319, 373-388 (January 1997) (discussing lethal injection execution protocol). As a result, Arizona's lethal injection execution protocol is cruel and unusual and violates the Eighth and Fourteenth Amendments. At a minimum, an evidentiary hearing is necessary to determine whether or not Arizona's lethal injection execution protocol passes constitutional muster.

1. Overview of lethal injection execution protocol

In 1992, the Arizona Constitution was amended to provide:

The judgment of death shall be inflicted by administering an intravenous injection of a substance or substances in a lethal quantity sufficient to cause death except that defendants sentenced to death for offenses committed prior to the effective date of the amendment to this section shall have the choice of either lethal injection or lethal gas . . . .

Ariz. Const. art. 22, 22. (1992). Following the amendment to the Arizona Constitution, the Arizona legislature amended A.R.S. 13-704(B) to provide:

A defendant who is sentenced to death for an offense committed before November 23, 1992 shall choose either lethal injection or lethal gas at least twenty days before the execution date. If the defendant fails to choose either lethal injection or lethal gas, the penalty of death shall be inflicted by lethal injection.

A.R.S. 13-704(B) (1993).

a. Drugs

At this point, Ceja believes the following "drugs" will be used to cause his death: Pentothal; Pancuronium (PavulonTM) and Potassium Chloride. [See Brunner Aff., 3, attached Exhibits 2 and 4(I)] In addition, Valium, Lidocaine HCL, Epinephrine, Xylocaine, Narcan, Morphine and Demoral are available for use during the lethal injection process. [Id.] Of these drugs, Pentothal, Valium, Narcan, Morphine and Demoral, are all medications which are controlled substances under federal drug regulations and are approved only for medicinal use, not for executions. Possession and use of these drugs is restricted to individuals properly licensed for use of these controlled substances. [Brunner Aff., 9]

Pentothal, Pancuronium, and Potassium Chloride are prescription-only drugs. A.R.S. 32-1901(57)a ("[a]ny drug which because of its toxicity or other potentiality for harmful effect, or the method of its use, or the collateral measures necessary to its use, is not generally recognized among experts . . ., as safe for use except by or under the supervision of a medical practitioner"). Under A.R.S. 32-1968, only a licensed medical practitioner may dispense or request a licensed pharmacist to dispense prescription-only drugs. Accord A.R.S. 32-1901(58)a & b, defining in pertinent part, a prescription order as (i) "An order to a pharmacist for drugs or devices issued and signed by a duly licensed medical practitioner in the authorized course of his professional practice;" or (ii) "An order transmitted to a pharmacist through word of mouth, telephone or other means of communication directed by such medical practitioner").

To dispense the "prescription-only drugs" used in lethal injection executions, Ceja believes that the State will follow a prescription procedure identified as "charting" essentially a prescription order, necessarily made by a medical doctor, entered into the condemned prisoner's medical "chart." After "charting" is complete, the State allows for the drugs to be dispensed to the Department of Corrections and administered at the execution. [Brunner Aff., Exhibits 2 and 4(I) at Ins. 1 and 23] Under A.R.S. 32-1491(D), the prescribing practitioner must "provide direct supervision of a nurse or attendant involved in the dispensing process."

b. Lethal injection procedure

To Ceja's knowledge and belief, the following procedures will take place to cause death of Ceja by lethal injection:

On the day before the scheduled execution, ADOC staff will collect the "drugs" to be used to cause death and that are prescribed by a doctor from the pharmacy at the ASP-Florence. [Brunner Aff., Exhibit 4(h)]

On the day before the scheduled execution, ADOC staff will conduct an inventory of equipment and materials and all inventoried materials, equipment, and "drugs," are secured in the equipment area adjacent to the execution chamber. Id.

Several hours before the execution the "drug" box is delivered to the ASP-Florence warden and she delivers the "drug" box to the ADOC staff who will conduct the execution. Id.

Approximately an hour before the scheduled execution, the Warden gives the signal to proceed and the inmate is removed from his cell, strip searched, and escorted to the execution chamber. At that time, the Warden asks the inmate if he has any "last words." Id.

During the last hour before the scheduled execution, "IV's" are inserted into the inmate, and a heart monitor is positioned. Id.

At the time of the scheduled execution, the Warden tells ADOC staff to proceed and the execution commences. Id.

c. Previous executions by lethal injection in Arizona

Since the United States Supreme Court permitted states to resume carrying out executions, Arizona has executed eight individuals seven by lethal injection.

On April 6, 1992, Donald Gene Harding was executed by lethal gas.

On March 3, 1993, John George Brewer was executed by lethal injection. Mr. Brewer waived his appeals. To Ceja's knowledge and belief, the first drug administered to Mr. Brewer was pentothal. [Brunner Aff., Exhibit 2] The intended effect of this drug was to sedate Mr. Brewer, but the level of pentothal listed in the autopsy report was well below the therapeutic range. [Brunner Aff., Exhibit 5 (John George Brewer - Autopsy Report, March 3, 1993 ("Brewer Autopsy")), at 11]

On April 14, 1993, James Dean Clark was executed by lethal injection. To Ceja's knowledge and belief, the first drug administered to Mr. Clark was pentothal. [Brunner Aff., Exhibit 2] The intended effect of this drug was to sedate Mr. Clark, but the level of pentothal listed in the autopsy report was well below the therapeutic range. [Brunner Aff., Exhibit 6 (James Dean Clark - Autopsy Report, April 14, 1993 ("Clark Autopsy")), at 10]

"The anesthesia-inducing actions of sodium pentothal are of very brief duration. A subject awakens rapidly from its effects. It is classified as an 'ultra short-acting barbiturate.' Recovery from the effects of this drug, which has occurred when completion of execution has been prolonged, subjects the inmate to suffering and torture because of the painful sensations of suffocation produced by the paralyzing effects of Pancuronium and the extreme sensation of burning produced by potassium chloride." [Brunner Aff., 10] The low levels of pentothal revealed by both autopsies suggest that Mr. Brewer and Mr. Clark suffered just this kind of agonizing death.

On August 22, 1996, Luis Mata was executed by lethal injection. Under established procedures, Mata was strapped to a gurney at approximately 11:30 p.m. on August 21st and the lethal injection needles were inserted. [Brunner Aff., Exhibit 7 (Affidavit by Jeffery L. Kirchmeier, Jan. 10, 1997 ("Kirchmeier Affidavit"), at ?? 2)] To Ceja's knowledge and belief, ADOC staff began to insert intravenous ("IV") lines at or about 11:30 p.m. [Brunner Aff., Exhibit 4(i)] "An IV placement is a procedure which ordinarily is complete within 3 to 5 minutes. Even if a surgical cut-down procedure [was] required meaning that ADOC staff need[ed] to dissect [Mr. Mata] in order to insert the IV it should be completed by competent medical personnel within 10 to 15 minutes." [Brunner Aff., 11] To Ceja's knowledge and belief, Mr. Mata remained in this position in the execution chamber for one hour and ten minutes while his attorneys were arguing to the Arizona Supreme Court. Kirchmeier Affidavit at ?? 2, 5, 8 through 14. When the execution went forward, the following occurred:

"All of a sudden, the praying stopped. Immediately, Mr. Mata's head jerked back and from side to side several times. Then, his face contorted.

Then, his mouth and lips flapped in a very unnatural way sort of like one does when one is exhausted and says "phew" or sort of like when one makes a raspberry sound, but more extreme and unnatural and involving the entire mouth area instead of just his lips.

Mr. Mata's body stopped moving, and I thought it was over. I was watching Mr. Mata at this time and not my watch, so I do not know exactly how much time passed, but it seemed like a couple of minutes.

Then, his chest and stomach began quick, sharp heaving. His chest and stomach went up and down about six or seven times. Then, he did not move.

The execution was not like going to sleep. There were several contortions and jerks in the body, such that I cannot get the picture of them out of my mind. Because the execution chamber is soundproof, I do not know what sounds were made as Mr. Mata was dying."

[Kirchmeier Affidavit, ?? 18 through 22]

At this time, Ceja does not have any information about the lethal injection executions of Jimmie Wayne Jeffers, Darren Bolton, Randy Greenawalt or William Woratzeck.

2. Arizona's lethal injection protocol is cruel and unusual

Ceja submits that the current lethal injection protocol violates the Eighth and Fourteenth Amendments of the United States Constitution and Art. 2, 15 of the Arizona Constitution.

The Eighth Amendment prohibits methods of carrying out the death sentence that involve the "unnecessary and wanton infliction of pain," unneeded terror or disgrace, or "lingering death." Gregg v. Georgia, 428 U.S. at 173; Louisiana ex rel Francis v. Resweber, 329 U.S. at 463; In re Kemmler, 136 U.S. 436 (1890); Wilkerson v. Utah, 99 U.S. 130 (1878). The lethal injection method of execution to be used by Arizona in this case, and as applied to Jose Jesus Ceja, violates this fundamental constitutional mandate because: Jose Ceja will be strapped to the gurney and hooked up to the lethal needle for at least thirty-five minutes before his scheduled execution.

Jose Ceja will not die instantly and he will feel extreme pain and suffering as a result of an inappropriate mixture of the drugs that will be used to execute him.

iii. The Arizona protocol allows for severe risks of error.

iv. The protocol has resulted in needlessly painful, violent and brutal deaths in at least three of the seven executions conducted by lethal injection.

The substantial frequency of such brutal deaths under the Arizona procedure demonstrates that the unnecessary, torturous pain inheres in the particular method of lethal injection used by the State. And as such, the method is "so degrading and brutalizing to the human spirit as to constitute psychological torture." Furman v. Georgia, 408 U.S. at 288 (Brennan, J. concurring).

Death "where unconsciousness is likely to be immediate or within a matter of seconds is apparently within constitutional limits . . . the persistence of consciousness for over a minute or between a minute and a minute-and-a-half, but no longer than two minutes might be outside of constitutional boundaries." Fierro v. Gomez, 77 F.3d 301, 308 (9th Cir.), vacated on other grounds, 117 S. Ct. 285 (1996) (remanded for reconsideration in light of changing statute). A method is unconstitutional if Ceja faces a "substantial risk" of suffering "extreme pain for several minutes." Id. This risk is heightened if the execution protocol is created in an "unscientific, slapdash manner." Fierro v. Gomez, 865 F. Supp. 1387, 1413 (N.D. Cal. 1994), aff'd, 77 F.3d 301 (9th Cir. 1996). Based on evidence from previous Arizona lethal injection executions, Ceja faces just such a substantial risk and an execution protocol that is cruel and unusual.

At a minimum, an evidentiary hearing is necessary to investigate the protocol used by the State of Arizona in executing prisoners by lethal injection to determine whether or not it meets constitutional strictures.

Prayer for Relief

Jose Jesus Ceja requests that this Court:

1. Relieve him of his unconstitutional sentences of death and imprisonment, and grant a new sentencing in accordance with constitutional mandates;

2. Appoint counsel for Mr. Ceja, who is indigent, and grant counsel a reasonable time to review the record, conduct necessary investigation and amend this petition.

3. Grant Mr. Ceja sufficient funds to secure expert testimony and investigative assistance necessary to prove facts as alleged in this petition;

4. Grant an evidentiary hearing at which proof may be offered concerning the allegations of this petition;

5. Stay the execution currently scheduled for 12:05 a.m. MST, Wednesday, January 21, 1998.

6. Grant such other further relief as the court deems just and proper.

January 19, 1998.

Respectfully submitted,

BROWN & BAIN, P.A.

By

Michael W. Patten

Charles Van Cott

Timothy A. Nelson

2901 North Central Avenue

Post Office Box 400

Phoenix, Arizona 85001-0400

Attorneys for Petitioner

Jose Jesus Ceja

COPY telecopied on

January 19, 1998, to:

Grant Woods, Esq.

Attorney General

Galen H. Wilkes. Esq.

Assistant Attorney General

ATTORNEY GENERAL'S OFFICE

Criminal Appeals Section

1275 West Washington

Phoenix, Arizona 85007-2997
 
 

COPY hand-delivered on

January 19, 1998, to:

Owen McGeehon

Capital Case Staff Attorney

UNITED STATES DISTRICT COURT

230 North 1st Avenue

Phoenix, Arizona 85025