SAN FRANCISCO — The 9th U.S. Circuit Court of Appeals has declined to rehear an appeal from condemned killer Donald Beardslee, moving him a step closer to becoming the 11th person executed in California since the state reinstated the death penalty.

Beardslee had challenged the state’s method of execution by lethal injection, saying it constituted cruel and unusual punishment and would violate his free-speech rights because it wouldn’t allow him to scream in pain.

The 9th Circuit refused to rehear Beardslee’s appeal with an 11-judge panel, dismissing his case. The decision came a day after a three-judge panel ruled against him.

Beardslee’s attorneys have asked the U.S. Supreme Court to hear their challenge and stay the execution, which is scheduled for 12:01 a.m. tomorrow.

Beardslee, 61, was convicted of killing two Northern California women in 1981, three years after the state’s death penalty was reinstated.

In one of his appeals, he claimed lethal injection would cause him to suffer from torturous pain. Beardslee’s attorneys also claimed that the combination of a sedative and a paralyzing agent would mask whether he was experiencing excruciating pain while prohibiting him from crying out. They contended that would be a violation of his freedom of speech.

The procedure is done in 26 of the 36 states that employ lethal injection.

The American Civil Liberties Union, meanwhile, argued that the combination of drugs would also prevent the two dozen public witnesses to the execution from seeing Beardslee contort or hear his agony, a violation of those witnesses’ First Amendment rights. The 9th Circuit rejected that claim on purely procedural grounds, ruling it was too late.

However, the court left open the possibility that it might reconsider the ACLU’s claim if the ACLU made the challenge first in the lower courts. The ACLU said it would not immediately continue with the case.

The U.S. Supreme Court has never directly addressed whether death sentences carried out by lethal injection are cruel and unusual punishment, but have been asked repeatedly. The justices, however, have upheld executions in general despite the pain they might cause inmates.

Beardslee’s appeal is the first to ask the justices to consider whether lethal injection violates the First Amendment.

Beardslee also has another court challenge before the Supreme Court. In that appeal, Beardslee claims jurors, when rendering a death verdict, were prejudiced into voting that way.

In that challenge, the 9th Circuit ruled that jurors wrongly considered that the murders were carried out to prevent the two victims from being witnesses in court against Beardslee and Rutherford. But the circuit, in dismissing the challenge, ruled that the error didn’t prejudice the jury’s unanimous conclusion that Beardslee should die for the murders.

The murders of which Beardslee was convicted began when an accomplice, Frank Rutherford, shot Patty Geddling in the shoulder when she came to Beardslee’s apartment in Redwood City. The defendants lured the Geddling and another woman there to seek revenge for being stiffed out of drugs.

Beardslee and Rutherford took the wounded Geddling, 19, to a roadside along Highway 1 in San Mateo County, where she was shot several times. Her friend, Stacey Benjamin, 23, was strangled and her throat slit. Her body was dumped hundreds of miles away in a secluded area in Lake County.

Rutherford got a life term and died in prison.

Only a favorable decision in either of the two court cases or clemency from Gov. Arnold Schwarzenegger could spare Beardslee from being executed.

The case decided Jan. 15 is Beardslee v. Woodford. The other case is Beardslee v. Brown.