Mitchell v. United States of America

Filing 92

ORDER: IT IS HEREBY ORDERED denying Mitchell's Motion for a Stay of Execution. (Doc. 84 .) (See Order for details.) Signed by Senior Judge David G Campbell on 8/30/2019. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lezmond Mitchell,

No. CV-09-08089-PCT-DGC

Petitioner,

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v.

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United States of America,

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ORDER

Respondent.

DEATH PENALTY CASE

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Before the Court is the Motion for Stay of Execution filed by federal death row

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inmate Lezmond Mitchell. (Doc. 84.) Respondent opposes the motion. (Doc. 88.) For

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the reasons set forth below, the motion is denied.

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I.

BACKGROUND

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In 2003, Mitchell was sentenced to death under the Federal Death Penalty Act, 18

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U.S.C. §§ 3591–3598. His conviction and sentences were affirmed on appeal. United

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States v. Mitchell, 502 F.3d 931, 942 (9th Cir. 2007), cert. denied 553 U.S. 1094 (2008).

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On May 22, 2009, Mitchell filed a motion for authorization to interview his jurors. (Doc.

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1.) Specifically, he sought “to interview the jurors about racial and religious prejudice.”

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(Id. at 10.) On September 4, 2009, the Court, pursuant to Local Rule of Civil Procedure

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39.2(b), denied Mitchell’s request to interview jurors because it was untimely and failed to

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establish good cause. (Doc. 21.) Mitchell moved to vacate, set aside, or correct his

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sentence under 28 U.S.C. § 2255.

(Doc. 9.)

The Court denied his motion on

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September 30, 2010 (Doc. 56), and the Ninth Circuit affirmed. Mitchell v. United States,

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790 F.3d 881, 883 (9th Cir. 2015), cert. denied 137 S. Ct. 38 (2016). The Ninth Circuit

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issued its mandate on November 6, 2015. (Doc. 70.)

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Following the United States Supreme Court’s decision in Peña-Rodriguez v.

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Colorado, 137 S. Ct. 855 (2017), Mitchell moved for relief from judgment pursuant to

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Federal Rule of Civil Procedure 60(b)(6), citing the decision as grounds to reopen his

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postconviction proceedings and moving the Court for an order granting access to the jurors

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from his trial.1 The Court determined that it had jurisdiction to consider the motion, finding

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it was not a disguised successive § 2255 motion, but denied the motion on the grounds that

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Pena-Rodriguez specifically noted that the methods of investigating potential racial animus

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remain governed by local rules, and under the requirements of Local Rule 39.2, Mitchell

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had failed to demonstrate good cause to allow the interviews. (Doc. 80.)

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Mitchell appealed. The Ninth Circuit granted a certificate of appealability as to

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“whether the district court properly denied appellant’s motion to re-open his case pursuant

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to Fed. R. Civ. P. 60(b)(6).” Mitchell v. United States, No. 18-17031, 9th Cir. Doc. 10.

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The appeal is currently being briefed. Mitchell’s opening brief was filed August 28, 2019.

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The answering brief is due September 27, and the reply brief is due no later than

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October 18, 2019.

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On July 25, 2019, Warden T.J. Watson at the Federal Correctional Complex (FCC),

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Terre Haute, Indiana, notified Mitchell by letter that the Director of the Federal Bureau of

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Prisons set December 11, 2019, as the date for Mitchell’s execution by lethal injection.

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Mitchell filed the pending motion to stay on August 5, 2019.

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II.

ANALYSIS

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When a notice of appeal is filed, jurisdiction over the matters being appealed

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normally transfers from the district court to the appeals court. See Marrese v. Am.

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Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985) (“In general, filing of a notice

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In Pena-Rodriguez, the Supreme Court created a narrow exception to the federal “noimpeachment” rule, which prohibits litigants from using jurors’ statements to attack the
validity of a verdict, where a juror has made clear statement that indicates he or she relied
on racial stereotypes or animus to convict the defendant. 137 S. Ct. at 869.
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of appeal confers jurisdiction on the court of appeals and divests the district court of control

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over those aspects of the case involved in the appeal.”). The Federal Rules of Civil

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Procedure provide an exception, however, that allows the district court to retain jurisdiction

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to suspend, modify, restore, or grant an injunction during the pendency of the

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appeal. Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001); Fed. R. Civ. P. 62(d).

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Mitchell filed his motion for a stay pursuant to Rule 62(c), now Rule 62(d), of the

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Federal Rules of Civil Procedure, which provides that “while an appeal is pending from an

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interlocutory order or final judgment that grants, continues, modifies, refuses, dissolves, or

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refuses to dissolve or modify an injunction, the court may suspend, modify, restore, or

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grant an injunction on terms for bond or other terms that secure the opposing party’s

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rights.”

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jurisdiction over its rulings on claims for injunctive relief after those rulings have been

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appealed.” 2 Federal Rules of Civil Procedure, Rules and Commentary Rule 62.

Fed. R. Civ. P. 62(d).

“Rule 62(d) addresses the trial court’s continuing

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Respondent contends that this Court lacks jurisdiction to hear Mitchell’s motion for

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a stay because Rule 62(d) applies only in the context of injunctions and Mitchell is not

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appealing an order granting or denying injunctive relief. (Doc. 88 at 5–6.) The Court

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agrees. “Rule 62(c) [now 62(d)], by its terms, requires that the appealed matter relate to

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an injunction.” Turtle Island Restoration Network v. U.S. Dep’t of Commerce, No. CV 09-

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00598 DAE-KSC, 2011 WL 2441679, at *4 (D. Haw. June 14, 2011); see Biltmore Assocs.,

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L.L.C., as Tr. v. Twin City Fire Ins. Co., No. 2:05-CV-04220-PHX-FJM, 2007 WL

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2422053, at *1 (D. Ariz. Aug. 22, 2007) (“[A] Rule 62(c) [now (d)] stay is available only

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when ‘an appeal is taken from an interlocutory or final judgment granting, dissolving, or

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denying an injunction.’”). Mitchell is appealing this Court’s denial of his Rule 60(b)(6)

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motion, not an order or judgment on a claim for injunctive relief.

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In his motion for a stay, Mitchell cites no support for the proposition that Rule 62(d),

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contrary to its plain language, applies outside the context of an injunction. He relies on

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Natural Resources Defense Council, Inc. v. Southwest Marine Inc., 242 F.3d 1163, 1166

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(9th Cir. 2001), which held that “[t]he district court retains jurisdiction during the pendency

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of an appeal to act to preserve the status quo.” Southwest Marine does not advance

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Mitchell’s argument because the case involved an appeal of an order granting an injunction.

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The court found that under Rule 62(c) (now (d)), “the district court had jurisdiction and

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discretion to make the post-appeal modifications, which slightly modified and enforced the

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injunction, to preserve the status quo.” Id. at 1165. The case does not suggest that Rule

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62(d) is applicable outside the context of orders involving an injunction.

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In Southwest Marine the court clarified that Rule 62(d) “grants the district court no

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broader power than it has always inherently possessed to preserve the status quo during the

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pendency of an appeal.” Id. at 1166. In Mitchell’s case, the status quo is that the Judgment

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and Order imposing a death sentence have been affirmed by the Ninth Circuit and a

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mandate has issued. Unlike cases where an injunction is involved, granting a stay here

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would not aid in preservation of the status quo.

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In his reply brief (Doc. 90), Mitchell argues that his position is supported by Jones

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v. Ryan, No. CV-01-00592-TUC-TMB, 2018 WL 5066494, at *2 (D. Ariz. Oct. 17, 2018).

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Jones is readily distinguishable. There, Respondents moved for a stay of the issuance of

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the writ after the petitioner moved for release. The issue was governed by Federal Rule of

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Appellate Procedure 23(c), a rule not applicable to Mitchell’s case.

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The remaining cases cited in Mitchell’s reply brief do not convince the Court that it

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has jurisdiction. In these cases, the district court considered motions for a stay filed

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pursuant to Federal Rule of Appellate Procedure 8(a)(1)(A). Rule 8(a)(1)(A) provides that

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“[a] party must ordinarily move first in the district court for . . . a stay of the judgment or

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order of a district court pending appeal.” Unlike the cases cited in his reply brief, in which

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a party sought to stay the enforcement of an order pending appeal of that order, in

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Mitchell’s case there is no pending appeal of the Order or Judgment.

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For example, in Harris v. Copenhaver, No. 1:12-cv-938-AWI-DLB (HC), 2012

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U.S. Dist. LEXIS 154931 (E.D. Cal. Oct. 26, 2012), the petitioner filed for an injunction

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under Rule 8(a)(1) after his habeas petition was denied and judgment entered. In In re

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Halvorson, No. SACV 18-519-JVS, SACV 18-520-JVS, 2019 WL 3017679, at *4–5 (C.D.
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Cal. Apr. 1, 2019), one of the parties filed a motion to stay enforcement of a vacatur order

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pending appeals of the order. In In re Estates, No. LA CV13-5286-VBF, 2014 WL

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12088558, (C.D. Cal. Sept. 30, 2014), the appellant filed a motion to stay in district court

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after appealing a bankruptcy court’s judgment. In Alliance of Nonprofits for Ins., Risk

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Retention Group v. Barratt, No. 2:10-CV-1749 JCM (RJJ), 2012 WL 3561963, at *3 (D.

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Nev. Aug. 16, 2012), the defendant filed for a stay pending appeal of the award and

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judgment in favor of the plaintiff.

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Finally, Respondents argue, contrary to Mitchell’s position, that Rule 8(a) does not

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provide an independent basis for jurisdiction. (Doc. 88 at 7.) The Court agrees. While

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Rule 8(a)(1)(a) describes the process for seeking a stay, Rule 62(d) “regulates the power

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of the district courts to grant such relief.” Vasile v. Dean Witter Reynolds, Inc., 205 F.3d

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1327 (2d Cir. 2000) (unpublished); see 20 Moore’s Federal Practice—Civil § 308.12

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(2019) (“The grant of a stay or injunction by the district court is regulated by Civil Rule

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62, not Appellate Rule 8.”). Rule 62(d) does not apply to Mitchell’s request for a stay.

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Rule 8 does not independently confer jurisdiction on this Court.

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III.

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CONCLUSION
For the reasons set forth above, the Court lacks jurisdiction to consider Mitchell’s

motion. Accordingly,
IT IS HEREBY ORDERED denying Mitchell’s Motion for a Stay of Execution.
(Doc. 84.)
Dated this 30th day of August, 2019.

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