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    The Court granted Lezmond Mitchell's motion to stay his execution pending resolution of his appeal of the district court's denial of his Rule 60(b) motion. A dissenting judge argued that the Court should not have granted the stay without first determining whether Mitchell has a significant possibility of success on the merits of his appeal, as is required. The dissenting judge further argued that the Court has adequate time before Mitchell's scheduled execution date to decide the merits of the appeal.

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    Filed: Molly C. Dwyer, Clerk

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    The Court granted Lezmond Mitchell's motion to stay his execution pending resolution of his appeal of the district court's denial of his Rule 60(b) motion. A dissenting judge argued that the Court should not have granted the stay without first determining whether Mitchell has a significant possibility of success on the merits of his appeal, as is required. The dissenting judge further argued that the Court has adequate time before Mitchell's scheduled execution date to decide the merits of the appeal.

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    The Court granted Lezmond Mitchell's motion to stay his execution pending resolution of his appeal of the district court's denial of his Rule 60(b) motion. A dissenting judge argued that the Court should not have granted the stay without first determining whether Mitchell has a significant possibility of success on the merits of his appeal, as is required. The dissenting judge further argued that the Court has adequate time before Mitchell's scheduled execution date to decide the merits of the appeal.

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    © All Rights Reserved
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    27 views6 pages

    Filed: Molly C. Dwyer, Clerk

    Uploaded by

    •Muffin•
    The Court granted Lezmond Mitchell's motion to stay his execution pending resolution of his appeal of the district court's denial of his Rule 60(b) motion. A dissenting judge argued that the Court should not have granted the stay without first determining whether Mitchell has a significant possibility of success on the merits of his appeal, as is required. The dissenting judge further argued that the Court has adequate time before Mitchell's scheduled execution date to decide the merits of the appeal.

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    of 6

    Case: 18-17031, 10/04/2019, ID: 11455297, DktEntry: 26, Page 1 of 6

    UNITED STATES COURT OF APPEALS FILED


    FOR THE NINTH CIRCUIT OCT 4 2019
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    LEZMOND C. MITCHELL, AKA Lezmond No. 18-17031
    Charles Mitchell,
    D.C. Nos. 3:09-cv-08089-DGC
    Petitioner-Appellant, 3:01-cr-01062-DGC-1
    District of Arizona,
    v. Prescott

    UNITED STATES OF AMERICA, ORDER

    Respondent-Appellee.

    Before: IKUTA, CHRISTEN, and HURWITZ, Circuit Judges.

    Before an execution date had been set in this capital case, this Court granted

    a Certificate of Appealability, entitling Mitchell to appeal the district court’s denial

    of his Rule 60(b) motion. Mitchell has moved to stay the execution pending the

    disposition of the appeal. Briefing is not yet complete on the appeal, and the Court

    believes that oral argument would be appropriate.

    The Court therefore hereby stays the execution pending resolution of the

    appeal. Oral argument will be heard on December 13, 2019 at 2:00 p.m. in Phoenix,

    Arizona, at the Sandra Day O’Connor Courthouse, and shall be limited to 20 minutes

    per side.
    Case: 18-17031, 10/04/2019, ID: 11455297, DktEntry: 26, Page 2 of 6

    Mitchell v. United States, No. 18-17031


    Ikuta, Circuit Judge, dissenting

    We may not grant a stay of execution pending appeal without first

    determining whether the defendant has a “significant possibility of success on the

    merits” of the appeal. Hill v. McDonough, 547 U.S. 573, 584 (2006). The

    majority here grants Lezmond Mitchell’s motion to stay the government’s

    execution date without making this determination, even though we have adequate

    time to decide the merits of Mitchell’s claim prior to the execution date.

    Therefore, I dissent.

    Mitchell’s sentence of death has been pending for sixteen years. In 2003,

    Lezmond Mitchell was convicted and sentenced to death under the Federal Death

    Penalty Act, 18 U.S.C. §§ 3591–3598, for the murder of a 63-year-old

    grandmother and her nine-year-old granddaughter. Mitchell raised multiple

    challenges to his conviction and sentence, both on direct appeal and in a § 2255

    motion,1 but they all failed. See United States v. Mitchell, 502 F.3d 931, 942 (9th

    Cir. 2007), cert. denied, 553 U.S. 1094 (2008); Mitchell v. United States, 790 F.3d

    881, 885 (9th Cir. 2015), cert. denied, 137 S. Ct. 38 (2016).

    1
    A prisoner serving a federal sentence may bring a motion under 28 U.S.C.
    § 2255 claiming that the sentence was imposed in violation of the Constitution or
    federal laws.
    Case: 18-17031, 10/04/2019, ID: 11455297, DktEntry: 26, Page 3 of 6

    Mitchell brought this new appeal in 2018, after the Supreme Court decided

    Peña-Rodriguez v. Colorado, 137 S. Ct. 855 (2017). Peña-Rodriguez held that

    “where a juror makes a clear statement that indicates he or she relied on racial

    stereotypes or animus to convict a criminal defendant,” then the Sixth Amendment

    allows the trial court to “consider the evidence of the juror’s statement.” Id. at 869.

    Based on this holding, Mitchell brought a motion in district court under Rule

    60(b)(6) of the Federal Rules of Civil Procedure.2 Mitchell sought to reopen his

    prior § 2255 motion to investigate whether jurors were influenced by bias against

    him because he is a member of the Navajo Nation, even though the jurors had

    signed a certification attesting that race played no role in their decision, and there

    was no evidence that any of the jurors in his case were biased against him. The

    district court denied this motion in a well-reasoned opinion, holding that

    Peña-Rodriguez did not grant Mitchell a procedural right to investigate potential

    juror bias and that Mitchell’s motion did not comply with Local Rule of Civil

    Procedure 39.2(b), which requires meeting certain procedural requirements and

    showing good cause for a request to interview jurors. Mitchell v. United States,

    2018 WL 4467897, at *3–4 (D. Ariz. Sept. 18, 2018). In April 2019, we granted a

    2
    Rule 60(b)(6) provides that a court may relieve a party from a judgment or
    order for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).

    2
    Case: 18-17031, 10/04/2019, ID: 11455297, DktEntry: 26, Page 4 of 6

    certificate of appealability (COA) on the question whether the district court

    properly denied appellant’s Rule 60(b)(6) motion to reopen his § 2255 motion.

    On July 25, 2019, sixteen years after the death sentence was imposed, the

    government informed Mitchell that his execution date was set for December 11,

    2019. On September 9, 2019, Mitchell filed a motion for stay of execution with

    our court.

    II

    The Supreme Court has emphasized that “a stay of execution is an equitable

    remedy” that “is not available as a matter of right, and equity must be sensitive to

    the State’s strong interest in enforcing its criminal judgments without undue

    interference from the federal courts.” Hill, 547 U.S. at 583–84 (2006). Therefore,

    we may grant a stay of execution only “where the inmate seeking the stay can show

    a significant possibility of success on the merits.” Moormann v. Schriro, 672 F.3d

    644, 646–47 (9th Cir. 2012); see also Hill, 547 U.S. at 583–84 (holding that

    inmates seeking a stay of execution “must satisfy all of the requirements for a stay,

    including a showing of a significant possibility of success on the merits.”). If the

    petitioner fails to show “a strong likelihood of relief on the merits” we must deny

    the motion for stay. Moorman, 672 F.3d at 649; see also Cook v. Ryan, 688 F.3d

    598, 612–13 (9th Cir. 2012) (same).

    3
    Case: 18-17031, 10/04/2019, ID: 11455297, DktEntry: 26, Page 5 of 6

    The majority does not comply with this requirement. Instead of explaining

    why Mitchell has a likelihood of success on the merits of his Rule 60(b)(6) motion,

    the majority grants a stay of execution based on our prior grant of a COA on

    Mitchell’s Rule 60(b)(6) motion. But a COA grant does not mean that the

    petitioner has shown a significant possibility of success on the merits of the claim

    at issue. To the contrary, at the COA stage a “court of appeals should limit its

    examination . . . to a threshold inquiry into the underlying merit of [the] claims,”

    and ask “only if the District Court’s decision was debatable.” Buck v. Davis, 137 S.

    Ct. 759, 774 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)); see

    id. (holding that a prisoner may successfully make “a preliminary showing that his

    claim was debatable” even though the prisoner “failed to make the ultimate

    showing that his claim is meritorious”). While Mitchell’s Peña-Rodriguez claim

    may be debatable for COA purposes, it is far from obvious that it is likely to

    succeed on the merits. The district court has issued a persuasive opinion to the

    contrary. At a minimum, it is necessary for the majority to address this issue

    before interfering with the government’s scheduled execution.

    Because granting a stay requires evaluating the likelihood of success of

    Mitchell’s appeal on the merits, it would be more efficient to decide the merits of

    the appeal and motion to stay simultaneously. Briefing on the Rule 60(b)(6)

    4
    Case: 18-17031, 10/04/2019, ID: 11455297, DktEntry: 26, Page 6 of 6

    motion and the stay motion will be complete on October 11, 2019, two months

    before the scheduled execution date. Therefore, we have sufficient time to

    evaluate and decide Mitchell’s appeal on the merits. Cf. 28 U.S.C. § 2266(a) (“The

    adjudication of any . . . motion under section 2255 by a person under sentence of

    death, shall be given priority by . . . the court of appeals over all noncapital

    matters.”). We frequently decide claims in capital cases in a matter of days. See,

    e.g., Bible v. Schriro, 651 F.3d 1060 (9th Cir. 2011); Rhoades v. Reinke, 671 F.3d

    856 (9th Cir. 2011). We should do so here. If we conclude that the district court

    abused its discretion in denying Mitchell’s Rule 60(b)(6) motion, we can grant the

    motion to stay at that time.

    Accordingly, I dissent.

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