SAN FRANCISCO (AP) – A convicted murderer who is scheduled to be executed Wednesday began an appeal to a federal appeals court in San Francisco Sunday for a stay of his death penalty.

Lawyers for Albert Greenwood Brown filed a notice of appeal of rulings in which U.S. District Judge Jeremy Fogel of San Jose on Friday denied a stay and on Saturday refused to reconsider his decision.

The appeal will be considered by the 9th U.S. Circuit Court of Appeals.

Brown, 56, is scheduled to be executed by lethal injection at San Quentin State Prison for the 1980 rape and murder of a 15-year-old girl in Riverside.

If the execution occurs, it will be the first in California in nearly five years.

Brown apparently missed a noon deadline today for making a choice between being executed with one drug, the sedative sodium thiopental, or three drugs.

Christine Gasparac, a spokeswoman for California Attorney General Jerry Brown, said, “As far as we know, Brown didn’t file anything by the deadline.”

Fogel’s ruling on Friday allowed corrections officials to go ahead with the execution on the condition that they allow Brown to make a choice of one or three drugs. He said that if Brown did not make a choice by the deadline, officials could use the planned three-drug sequence.

Fogel is presiding over a 2006 civil rights lawsuit that claims the three-drug protocol risks causing unconstitutional extreme pain. Sodium thiopental alone can be lethal if used in increased doses and is not considered to be painful. The single-drug procedure has been used in nine executions in Ohio and Washington state.

Brown’s lawyers could not be reached for comment this afternoon.

In a separate case, the inmate’s attorneys plan to go to Marin

County Superior Court Monday morning to ask a judge there to block the execution.

The Superior Court lawsuit claims the state’s recent adoption of a revised lethal injection protocol violated a California law’s requirements for public review of new regulations.

(© CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten or redistributed. Bay City News contributed to this report.)

  1. Bart Simpson says:

    About time

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