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Mitchell v. United States

United States District Court, D. Arizona

September 17, 2018

Lezmond Charles Mitchell, Defendant/Movant,
v.
United States of America, Plaintiff/Respondent.

          ORDER

          David G. Campbell Senior United States District Judge.

         Before the Court is Petitioner Lezmond Mitchell's motion for relief from judgment, filed pursuant to Federal Rule of Civil Procedure 60(b)(6). (Doc. 71.) The motion has been fully briefed. (Docs. 76, 79.) For the reasons set forth below, the motion is denied.

         I. Background

         In 2003, Petitioner was sentenced to death under the Federal Death Penalty Act; his conviction and sentences were affirmed on appeal. United States v. Mitchell, 502 F.3d 931, 942 (9th Cir. 2007), cert. denied 553 U.S. 1094 (2009). On May 22, 2009, Petitioner filed a motion for authorization to interview jurors in which he asserted that his counsels' responsibility to conduct a thorough post-conviction investigation required that they be allowed to contact and interview all jurors in his case. (Doc. 1.) Specifically, Petitioner asked “to interview the jurors about racial and religious prejudice . . . to see whether Mitchell's Navajo beliefs, ” which the prosecutor briefly invoked during closing arguments, “played any part in his death sentence.” (Id. at 10.) Respondent opposed the motion. (Doc. 18.)

         Petitioner's request was governed by Local Rule of Civil Procedure 39.2(b), which requires that the requesting party “file with the Court written interrogatories proposed to be submitted to the juror(s), together with an affidavit setting forth the reasons for such proposed interrogatories, within the time granted for a motion for a new trial.” Id.; see also LRCrim. 23.1. In addition to these procedural requirements, the requesting party must establish good cause for the request. LRCiv. 39.2(b). On September 4, 2009, the Court denied Petitioner's request to interview jurors because it was untimely and failed to establish good cause. (Doc. 21.)

         Petitioner moved to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. (Doc. 9.) The Court denied his motion on September 30, 2010 (Doc. 56), and the Ninth Circuit affirmed. Mitchell v. United States, 790 F.3d 881, 883 (9th Cir. 2015), cert. denied 137 S.Ct. 38 (2016).

         The United States Supreme Court then decided Peña-Rodriguez v. Colorado, 137 S.Ct. 855 (2017), which Petitioner now cites as the basis for his request to reopen his § 2255 motion and revisit his motion to contact the jurors from his trial. (Doc. 71 at 3.)

         II. Discussion

         Citing Peña-Rodriguez, Petitioner alleges that this Court's prior denial of his request to interview jurors “prevented a full and fair merits determination, which warrants re-opening the proceedings under Rule 60(b), ” at which point he intends to again “move the Court for an order granting . . . access to the jurors from his trial.” (Doc. 71 at 9.) “Rule 60(b)(6) . . . permits reopening when the movant shows ‘any . . . reason justifying relief from the operation of the judgment' other than the more specific circumstances set out in Rules 60(b)(1)-(5).” Gonzalez v. Crosby, 545 U.S. 524, 528-29 (2005). Relief under Rule 60(b)(6) requires a showing of “extraordinary circumstances.” Id. at 536. “Such circumstances ‘rarely occur in the habeas context.'” Jones v. Ryan, 733 F.3d 825, 833 (9th Cir. 2013).

         Respondent urges that (1) the court lacks jurisdiction to decide Petitioner's Rule 60 motion because it is in reality an improper second or successive § 2255 petition, (2) Petitioner's motion is barred by this Court's prior rulings, and (3) the other safeguards against racial bias in this case were sufficient to ensure Petitioner's right to a fair trial was realized.[1] (Doc. 76.) Because Peña-Rodriguez does not grant Petitioner the right to investigate potential juror bias in the absence of a reason to believe his jurors may have been biased against him, there are no extraordinary circumstances warranting relief from the judgment.

         A. The Court Has Jurisdiction to Consider Petitioner's Motion.

         After a petitioner files an initial § 2255 petition, any subsequent § 2255 petition is barred unless the petitioner complies with the requirements of § 2255(h). See United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011) (noting that § 2255(h) requires that a petitioner seeking to file a second or successive petition must first have the circuit court certify that the petition relies on either substantial new evidence or a new, retroactive rule of constitutional law). To avoid these requirements, petitioners sometimes “characterize their pleading as being a motion under rule 60(b).” Id.

         The Ninth Circuit has issued guidance for determining when a Rule 60(b) motion is an attempt to circumvent the requirements of § 2255(h). “[A] Rule 60(b) motion that attacks ‘some defect in the integrity of the federal habeas proceedings' is not a disguised § 2255 motion . . . .” Washington, 653 F.3d at 1060 (quoting Gonzalez, 545 U.S. at 534). Motions that “seek vindication” of a claim, on the other hand, are “in substance [] successive habeas petition[s] and should be treated accordingly.” See Gonzalez, 545 U.S. at 531. Improperly disguised motions may include those that add new grounds for relief, attack the court's previous resolution of a claim on the merits, or supplement evidence in support of a previously litigated claim. Id. at 532.

         In this motion, Petitioner does not seek to vindicate a substantive claim. He consistently argues that he is seeking only to investigate, as a preliminary matter, whether a substantive claim exists. (Doc. 1 at 4-8; Doc. 71 at 6-9.) Only if he discovered evidence of juror bias would he then file a substantive claim. (Doc. 79 at 3-4.) His motion ...


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