United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
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.
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.)
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.)
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).
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.)
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).
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. (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.
The Court Has Jurisdiction to Consider Petitioner's
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).”
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.
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 ...