United States District Court, D. Arizona
G. Campbell Senior United States District Judge
the Court is the Motion for Stay of Execution filed by
federal death row inmate Lezmond Mitchell. (Doc. 84.)
Respondent opposes the motion. (Doc. 88.) For the reasons set
forth below, the motion is denied.
2003, Mitchell was sentenced to death under the Federal Death
Penalty Act, 18 U.S.C. §§ 3591-3598. 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 (2008). On May 22, 2009, Mitchell
filed a motion for authorization to interview his jurors.
(Doc. 1.) Specifically, he sought “to interview the
jurors about racial and religious prejudice.”
(Id. at 10.) On September 4, 2009, the Court,
pursuant to Local Rule of Civil Procedure 39.2(b), denied
Mitchell's request to interview jurors because it was
untimely and failed to establish good cause. (Doc. 21.)
Mitchell 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 Ninth Circuit issued its mandate on November 6,
2015. (Doc. 70.)
the United States Supreme Court's decision in
Peña-Rodriguez v. Colorado, 137 S.Ct. 855
(2017), Mitchell moved for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b)(6), citing the decision
as grounds to reopen his postconviction proceedings and
moving the Court for an order granting access to the jurors
from his trial. The Court determined that it had
jurisdiction to consider the motion, finding it was not a
disguised successive § 2255 motion, but denied the
motion on the grounds that Pena-Rodriguez
specifically noted that the methods of investigating
potential racial animus remain governed by local rules, and
under the requirements of Local Rule 39.2, Mitchell had
failed to demonstrate good cause to allow the interviews.
appealed. The Ninth Circuit granted a certificate of
appealability as to “whether the district court
properly denied appellant's motion to re-open his case
pursuant to Fed.R.Civ.P. 60(b)(6).” Mitchell v.
United States, No. 18-17031, 9th Cir. Doc. 10. The
appeal is currently being briefed. Mitchell's opening
brief was filed August 28, 2019. The answering brief is due
September 27, and the reply brief is due no later than
October 18, 2019.
25, 2019, Warden T.J. Watson at the Federal Correctional
Complex (FCC), Terre Haute, Indiana, notified Mitchell by
letter that the Director of the Federal Bureau of Prisons set
December 11, 2019, as the date for Mitchell's execution
by lethal injection. Mitchell filed the pending motion to
stay on August 5, 2019.
notice of appeal is filed, jurisdiction over the matters
being appealed normally transfers from the district court to
the appeals court. See Marrese v. Am. Academy of
Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)
(“In general, filing of a notice of appeal confers
jurisdiction on the court of appeals and divests the district
court of control over those aspects of the case involved in
the appeal.”). The Federal Rules of Civil Procedure
provide an exception, however, that allows the district court
to retain jurisdiction to suspend, modify, restore, or grant
an injunction during the pendency of the appeal.
Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir.
2001); Fed.R.Civ.P. 62(d).
filed his motion for a stay pursuant to Rule 62(c), now Rule
62(d), of the Federal Rules of Civil Procedure, which
provides that “while an appeal is pending from an
interlocutory order or final judgment that grants, continues,
modifies, refuses, dissolves, or refuses to dissolve or
modify an injunction, the court may suspend, modify, restore,
or grant an injunction on terms for bond or other terms that
secure the opposing party's rights.” Fed.R.Civ.P.
62(d). “Rule 62(d) addresses the trial court's
continuing jurisdiction over its rulings on claims for
injunctive relief after those rulings have been
appealed.” 2 Federal Rules of Civil Procedure, Rules
and Commentary Rule 62.
contends that this Court lacks jurisdiction to hear
Mitchell's motion for a stay because Rule 62(d) applies
only in the context of injunctions and Mitchell is not
appealing an order granting or denying injunctive relief.
(Doc. 88 at 5-6.) The Court agrees. “Rule 62(c) [now
62(d)], by its terms, requires that the appealed matter
relate to an injunction.” Turtle Island Restoration
Network v. U.S. Dep't of Commerce, No. CV 09-00598
DAE-KSC, 2011 WL 2441679, at *4 (D. Haw. June 14, 2011);
see Biltmore Assocs., L.L.C., as Tr. v. Twin City Fire
Ins. Co., No. 2:05-CV-04220-PHX-FJM, 2007 WL 2422053, at
*1 (D. Ariz. Aug. 22, 2007) (“[A] Rule 62(c) [now (d)]
stay is available only when ‘an appeal is taken from an
interlocutory or final judgment granting, dissolving, or
denying an injunction.'”). Mitchell is appealing
this Court's denial of his Rule 60(b)(6) motion, not an
order or judgment on a claim for injunctive relief.
motion for a stay, Mitchell cites no support for the
proposition that Rule 62(d), contrary to its plain language,
applies outside the context of an injunction. He relies on
Natural Resources Defense Council, Inc. v. Southwest
Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001), which
held that “[t]he district court retains jurisdiction
during the pendency of an appeal to act to preserve the
status quo.” Southwest Marine does not advance
Mitchell's argument because the case involved an appeal
of an order granting an injunction. The court found that
under Rule 62(c) (now (d)), “the district court had
jurisdiction and discretion to make the post-appeal
modifications, which slightly modified and enforced the
injunction, to preserve the status quo.” Id.
at 1165. The case does not suggest that Rule 62(d) is
applicable outside the context of orders involving an
Southwest Marine the court clarified that Rule 62(d)
“grants the district court no broader power than it has
always inherently possessed to preserve the status quo during
the pendency of an appeal.” Id. at 1166. In
Mitchell's case, the status quo is that the Judgment and
Order imposing a death sentence have been affirmed by the
Ninth Circuit and a mandate has issued. Unlike cases where an
injunction is involved, granting a stay here would not aid in
preservation of the status quo.
reply brief (Doc. 90), Mitchell argues that his position is
supported by Jones v. Ryan, No. CV-01-00592-TUC-TMB,
2018 WL 5066494, at *2 (D. Ariz. Oct. 17, 2018). Jones is
readily distinguishable. There, Respondents moved for a stay
of the issuance of the writ after the petitioner moved for
release. The issue was governed ...