Mitchell v. United States

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Lezmond Charles Mitchell, No. CV 20-8217-PCT-DGC

10 Petitioner, (No. CR-01-01062-001-PCT-DGC)

11 v. AMENDED ORDER1 DEATH-PENALTY CASE 12 United States of America, Execution Date: August 26, 2020 13 Respondent. 14 15 Petitioner Lezmond Mitchell filed two motions: (1) a motion to vacate, set aside, 16 or correct his sentence under 28 U.S.C. § 2255, or, in the alternative, for relief under 28 17 U.S.C. § 2241 (Doc. 1); and (2) a motion for a stay of execution (Doc. 3). The United 18 States filed responses opposing both motions (Docs. 5, 6) and Mr. Mitchell filed a reply in 19 support of both motions (Doc. 7). Mr. Mitchell was sentenced to death in this District in 20 United States v. Mitchell, CR 01-1062-001-PCT-DGC, he is now confined at the United 21 States Penitentiary in Terre Haute, Indiana (Register #486585-008), and his execution is 22 scheduled for next week. The Court will deny the motions. Mr. Mitchell’s request for oral 23 argument is denied because the issues have been fully briefed, the merits of the § 2255 24 motion do not present a close question, and further delay for oral argument is not warranted. 25 I. Procedural History. 26 In 2003, a jury convicted Mr. Mitchell, a Navajo, of first-degree murder, felony 27 murder, carjacking resulting in death, and related federal crimes. See United States v.

28 1 This amended order corrects minor errors in and makes minor wording changes to the version filed on August 21, 2020. 1 Mitchell, 502 F.3d 931, 942–43 (9th Cir. 2007). The victims, a 63-year-old grandmother 2 and her 9-year-old granddaughter, were also Navajos, and the crimes occurred on the 3 Navajo Indian reservation in Arizona. Id. 4 Mr. Mitchell faced capital punishment under the Federal Death Penalty Act 5 (“FDPA”), 18 U.S.C. §§ 3591–98, based on his conviction for carjacking resulting in 6 death. Id. at 945–46. Under the Major Crimes Act, 18 U.S.C. § 1153(a), the federal 7 government is permitted to prosecute serious crimes such as murder and manslaughter 8 involving intra-Indian offenses committed in Indian country. Id. The FDPA eliminated 9 the death penalty for federal prosecutions of Indian defendants under the Major Crimes 10 Act, subject to being reinstated at the election of a tribe’s governing body – the “opt-in” 11 provision. 18 U.S.C. § 3598. The Navajo Nation has declined to opt in to the federal death 12 penalty. Id. “[T]he Navajo Nation opposes the death penalty on cultural and religious 13 grounds,” and the Attorney General of the Navajo Nation expressed the Navajo Nation’s 14 opposition to the United States seeking capital punishment in Mr. Mitchell’s case in a letter 15 to the United States Attorney for the District of Arizona. Id. at 948. 16 As a result, the United States could not seek the death penalty against Mr. Mitchell 17 on the two murder charges. Instead, it pursued a death sentence by charging Mr. Mitchell 18 with carjacking resulting in death, a crime of nationwide applicability not covered by the 19 opt-in requirement. Id. Mr. Mitchell was given a death sentence on the carjacking count 20 in accordance with the jury’s unanimous verdict. Id. at 942. 21 On appeal, Mr. Mitchell argued, inter alia, that because the Navajo Nation never 22 opted in to the federal capital punishment scheme, the death sentence violated tribal 23 sovereignty. The Ninth Circuit considered Mr. Mitchell’s claims in detail and issued an 24 opinion on September 5, 2007, affirming his conviction and sentence. United States v. 25 Mitchell, 502 F.3d 931 (9th Cir. 2007). On June 9, 2008, the Supreme Court denied Mr. 26 Mitchell’s petition for certiorari. Mitchell v. United States, 553 U.S. 1094 (2008). 27 Mr. Mitchell moved to vacate, set aside, or correct his sentence under 28 U.S.C. 28 § 2255. Motion to Vacate, Set Aside, or Correct, Mitchell v. United States, No. CV-09- 1 8089-PCT-DGC (D. Ariz. filed June 8, 2009), Doc. 9. The Court denied his motion on 2 September 30, 2010, Mitchell v. United States, No. CV-09-8089-PCT-DGC, 2010 WL 3 3895691 (D. Ariz. Sept. 30, 2010), and the Ninth Circuit affirmed, Mitchell v. United 4 States, 790 F.3d 881, 883 (9th Cir. 2015). On October 3, 2016, the Supreme Court denied 5 Mr. Mitchell’s application for certiorari. Mitchell v. United States, 137 S. Ct. 38 (2016). 6 Thereafter, Mr. Mitchell filed a petition with the Inter-American Commission on 7 Human Rights (“IACHR” or “the Commission”), an organization formed under the 8 auspices of the Organization of American States (“OAS”). The petition alleged violations 9 of various provisions of the American Declaration of the Rights and Duties of Man 10 (“American Declaration”), including the right to life, the right to equality before the law, 11 and rights related to due process and a fair trial. See Petition No. P-627-17, Lezmond C. 12 Mitchell, Response of the United States, Sept. 21, 2017.2 13 Mr. Mitchell argued that the United States violated the sovereignty of the Navajo 14 Nation by seeking the death penalty. He also argued that his rights to due process and a 15 fair trial were violated by alleged collusion between the United States government and 16 tribal law enforcement, ineffective assistance of counsel, and decisions of the federal courts 17 in his habeas proceedings. 18 On July 14, 2020, the IACHR issued its report on the admissibility and merits of 19 Mr. Mitchell’s petition, concluding the United States was responsible for violations of 20 Articles I, XVIII, XXV, and XXVI of the American Declaration. See IACHR, Report No. 21 193/20, Case 13.570, Admissibility and Merits, Lezmond C. Mitchell, United States of 22 America, July 14, 2020. On August 12, 2020, the Commission issued its final report. See 23 IACHR, Report No. 209/20, Case 13.570, Admissibility and Merits (Final), Lezmond C. 24 Mitchell, United States of America, August 12, 2020. 25 II. Motion to Stay. 26 Mr. Mitchell asks the Court to stay his execution until resolution of his § 2255 27 motion. Doc. 3 at 12. The motion to stay is moot because this order resolves the motion.

28 2 Available at https://www.state.gov/wp-content/uploads/2019/05/14.g.-Mitchell-Petn- No.-P-627-17-U.S.-Response-to-Petition-Sept.-21-2017.pdf (last visited Aug. 21, 2020). 1 III. Jurisdiction. 2 Mr. Mitchell previously filed and litigated a § 2255 motion challenging his 3 conviction and sentence. Under the Antiterrorism and Effective Death Penalty Act 4 (“AEDPA”), he may not file a second or successive § 2255 motion in this Court unless he 5 has obtained a certification from the Court of Appeals. 28 U.S.C. §§ 2255(h) and 2244. 6 Mr. Mitchell has obtained no such certification. 7 He asserts that the present motion should be considered a “first” § 2255 motion 8 because he could not have raised his claim in his previous petition. Doc. 1 at 17, citing In 9 re Tamayo, 552 F. App’x. 371, 374 (5th Cir. 2014), and Leal Garcia v. Quarterman, 573 10 F.3d 214, 222–24 (5th Cir. 2009) (determining that petitioner’s second-in-time § 2255 11 petition was not successive because it relied on a presidential declaration in light of an 12 International Court of Justice opinion issued after petitioner’s first habeas petition). 13 The Supreme Court “has declined to interpret ‘second or successive’ as referring to 14 all [habeas] applications filed second or successively in time, even when the later filings 15 address a state-court judgment already challenged in a prior [habeas] application.” Panetti 16 v. Quarterman, 551 U.S. 930, 944 (2007). In Panetti, for example, the Court held that 17 competency-to-be-executed claims are exempt from the limitation on second or successive 18 petitions because such claims generally are not ripe until after the time has run to file a first 19 petition. Id. at 947; see also Slack v. McDaniel, 529 U.S. 473, 478 (2000) (declining to 20 apply § 2244(b) to a second petition where the first was dismissed for lack of exhaustion). 21 The Ninth Circuit has acknowledged that the reasoning of Panetti is not limited to 22 competency claims. In United States v. Buenrostro, 638 F.3d 720, 725 (9th Cir. 2011), the 23 court observed that “[p]risoners may file second-in-time petitions based on events that do 24 not occur until a first petition is concluded” if the claims raised therein “were not ripe for 25 adjudication at the conclusion of the prisoner’s first federal habeas proceeding.” In United 26 States v. Lopez, 577 F.3d 1053, 1064 (9th Cir. 2009), the court held that the factors 27 identified by the Supreme Court in Panetti must be considered in deciding whether other 28 types of claims may be addressed on the merits. The Panetti factors include “(1) the 1 implications for habeas practice of reading ‘second or successive’ literally for such claims, 2 (2) whether barring such claims would advance the policies behind AEDPA’s passage and 3 (3) the Court’s pre- and post-AEDPA habeas jurisprudence, including the common law 4 abuse-of-the-writ doctrine.” Id. at 1056 (citing Panetti, 551 U.S. at 942–43). “The Court 5 cautioned against interpreting AEDPA’s ‘second or successive’ provisions in a way that 6 would foreclose any federal review of a constitutional claim, or otherwise lead to perverse 7 results, absent a clear indication that Congress intended that result.” Id. at 1063. 8 The Panetti factors favor a conclusion that Mr. Mitchell’s motion is not second or 9 successive. Reading the “second or successive” provisions literally would foreclose 10 federal court review of his claim, would not promote the policies behind the AEDPA, 11 which are to require assertion of all claims that can be asserted at the time of a petition, and 12 would not square with Supreme Court jurisprudence such as Panetti. Mr. Mitchell’s 13 § 2255 petition is therefore properly filed and does not require pre-filing authorization. 14 For reasons stated in its response, the Court agrees with the government’s assertion 15 that two cases cited by Mr. Mitchell, Woods v. Cary, 525 F.3d 886, 888–90 (9th Cir. 2008), 16 and Magwood v. Patterson, 561 U.S. 320, 331 (2010), do not support the contention that 17 his claims are properly raised under § 2255. The government also attempts to distinguish 18 Panetti, asserting that the prisoner’s Ford claim (regarding competency to be executed) 19 was based on a new factual predicate and could not have been brought before the 20 competency issue was ripe. Doc. 5 at 8. The government asserts that there is no similarly 21 new factual predicate in Mr. Mitchell’s case. The Court disagrees. Under Mr. Mitchell’s 22 theory of this motion, his constitutional claim – that his conviction and sentence violate the 23 Supremacy Clause of the U.S. Constitution – was not ripe until the factual development of 24 the Commission’s final report, a report, he contends, that created binding obligations on 25 the United States to grant a new trial and commute his death sentence.3

26 3 The government also argues that this is a second and successive petition because Mr. Mitchell previously asserted each of the claims accepted by the IACHR and cannot litigate 27 them again. Doc. 5 at 8. But Mr. Mitchell does not seek to litigate those claims again in this motion. He instead asserts that the Court is bound by the IACHR decision, an issue 28 that was not litigated before. The government further argues that the IACHR decision is not a new development because it has no binding effect in this Court. But that is a merits 1 IV. Merits. 2 Mr. Mitchell makes a fairly radical argument. He asserts that this Court and all 3 courts of the United States are bound by the IACHR’s decision that he did not receive a 4 fair trial and cannot be sentenced to death in a new trial. He argues that this Court has no 5 choice but to grant him a new trial and, if that trial results in conviction, to not impose the 6 death penalty. Doc. 1 at 20. He contends that the United States has surrendered the power 7 of its courts to the IACHR. 8 Mr. Mitchell argues that the IACHR decision “created rights in Mitchell under 9 international law that are binding on the United States for two reasons: (1) because they 10 are derived directly from the OAS Charter, a treaty within the meaning of the U.S. 11 Constitution; and (2) because they are derived, through the OAS Charter, from the 12 American Declaration, a statement of human rights norms the United States has not only 13 adopted, but helped to draft.” Doc. 1 at 20. The Court is not persuaded by either argument.4 14 The Supremacy Clause of the Constitution provides that “all Treaties made . . . under 15 the Authority of the United States, shall be the supreme Law of the Land; and the Judges 16 in every State shall be bound thereby.” U.S. Const. art. VI, cl. 2. The Supreme Court has 17 recognized, however, that “while treaties ‘may comprise international commitments . . . 18 they are not domestic law unless Congress has either enacted implementing statutes or the 19 treaty itself conveys an intention that it be “self-executing” and is ratified on these terms.’” 20 Medellin v. Texas, 552 U.S. 491, 505 (2008) (citing Igartua–De La Rosa v. United States, 21 417 F.3d 145, 150 (C.A.1 2005) (en banc) (Boudin, C. J.)).5

22 issue and, as the Seventh Circuit noted in Garza v. Lappin, 253 F.3d 918, 923 (7th Cir. 2001), “we must not confuse lack of substantive merit with lack of jurisdiction.” 23 4 Citing many new cases, Mr. Mitchell argues for the first time in his reply brief that “even 24 if this Court concludes that the OAS Charter is a non-self-executing treaty, it is well established that habeas has historically been available to enforce rights under treaties that 25 do not themselves create private rights of actions.” Doc. 7 at 11–12. He also argues that “the weight of the Supreme Court’s precedents suggests that claims by petitioners in habeas 26 cases can be analogized to claims by defendants in other civil – and even criminal – lawsuits.” Id. at 12. The Court will not consider these arguments made for this first time 27 in a reply brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam); United States v. Anderson, 472 F.3d 662, 668 (9th Cir. 2006). 28 5 In Medellin, the Supreme Court explained the important distinction between treaties that 1 The treaty at issue in this case is the Charter of the OAS, which was originally 2 ratified by the United States in 1951 and ratified again as amended in 1968. The Charter 3 provided for the creation of the IACHR and created the American Convention on Human 4 Rights (the “American Convention”). OAS Charter (Amended) Article 112, 21 U.S.T. 5 607. Congress has not enacted statutes implementing the OAS Charter within the United 6 States. As a result, the Charter creates law binding in the courts of this country only if it is 7 self-executing and was ratified on those terms. Medellin, 552 U.S. at 505. 8 Mr. Mitchell asserts that the OAS Charter is self-executing because it “expressly 9 authorizes the Commission to promote and protect human rights, and the Commission is 10 authorized to hear individual petitions and to interpret the scope and meaning of human 11 rights under the OAS Charter and the American Declaration.” Doc. 1 at 21. The Supreme 12 Court held in Medellin, however, that a treaty’s mere grant of adjudicatory authority to an 13 international tribunal does not impose a self-executing obligation on member states to 14 comply with the tribunal decisions. 552 U.S. at 507–08 (“The Protocol says nothing about 15 the effect of an [International Court of Justice (“ICJ”)] decision and does not itself commit 16 signatories to comply with an ICJ judgment. The Protocol is similarly silent as to any 17 enforcement mechanism.”). Some clearer statement of member states’ obligations is 18 required before a treaty will be deemed self-executing. Id. at 508 (The enforcement article 19 “does not provide that the United States ‘shall’ or ‘must’ comply with an ICJ decision, nor 20 indicate that the Senate that ratified the U.N. Charter intended to vest ICJ decisions with 21 immediate legal effect in domestic courts.”). This is true even when, as here, the tribunal’s 22 decisions “are often precipitated by disputes involving particular persons or entities[.]” Id. 23 at 512.6

24 “constitute[] an international law obligation on the part of the United States” and treaties that “automatically constitute binding federal law enforceable in United States courts.” 552 25 U.S. at 504. Mr. Mitchell’s motion disregards this distinction.

26 6 Mr. Mitchell tries to distinguish Medellin by noting that it addressed whether a decision of the ICJ pre-empted state law, and by arguing that his case has nothing to do with state 27 law. Doc. 1 at 22. But the decision in Medellin did not turn on the fact that state law was at issue. The petitioner argued that the decision of the ICJ created “a ‘binding’ obligation 28 on the state and federal courts of the United States.” 552 U.S. at 504 (emphasis added). The Supreme Court spoke broadly about whether the treaty in question created “binding 1 Mr. Mitchell cites no language from the OAS Charter suggesting that member states 2 are required to abide by IACHR decisions, and courts addressing the issue have concluded 3 that it contains no such language. In Flores-Nova v. Attorney Gen. of U.S., 652 F.3d 488 4 (3d Cir. 2011), for example, the petitioners asserted that “the United States is bound by the 5 IACHR’s finding that removing lawful permanent residents without giving them an 6 opportunity for a meaningful hearing would violate numerous articles of the [American 7 Declaration].” Id. at 493. The Third Circuit disagreed, holding that “the language of the 8 OAS Charter and of the IACHR’s governing statute indicates that IACHR’s decisions are 9 not binding on the United States.” Id. In so holding, the Third Circuit looked to the 10 Seventh Circuit’s decision in Garza, which likewise held that decisions of the IACHR are 11 not binding on U.S. courts: 12 Nothing in the OAS Charter suggests an intention that member states will be 13 bound by the Commission’s decisions before the American Convention goes into effect. To the contrary, the OAS Charter’s reference to the Convention 14 shows that the signatories to the Charter intended to leave for another day 15 any agreement to create an international human rights organization with the power to bind members. 16 17 253 F.3d at 925. The United States has signed the American Convention, but has not 18 ratified it. Garza, 253 F.3d at 925; see also American Convention on Human Rights, 19 General Information of the Treaty: B-32, available at http://www.oas.org/dil/treaties_B- 20 32_American_ Convention_on_Human_Rights_sign.htm (last visited August 21, 2020). 21 An unratified treaty has no binding effect within the U.S. Flores-Nova, 652 F.3d at 494 22 n.6. 23 The Court accordingly concludes that Mr. Mitchell’s first argument – that IACHR 24 decisions have binding power within the U.S. because “they are derived directly from the 25 OAS Charter” (Doc. 1 at 20) – is entirely unpersuasive. The OAS Charter is not self- 26 federal law enforceable in United States courts” (id.) and noted that obligations established 27 by self-executing treaties “would be immediately and directly binding on state and federal courts pursuant to the Supremacy Clause” (id.). Medellin concerns the effect within the 28 U.S. of an international tribunal’s decisions – precisely the issue here. Nothing in the case suggests that it is limited to the effect of such decisions on state law. 1 executing, and Congress has passed no statute to implement it. Medellin, 552 U.S. at 505. 2 Indeed, every federal court of appeals that has addressed this issue “has concluded that 3 IACHR decisions do not have domestic legal force.” Cardenas v. Stephens, 820 F.3d 197, 4 203 (5th Cir. 2016); see also In re Hicks, 375 F.3d 1237, 1241 n.2 (11th Cir. 2004) (“nor 5 is any finding made by [the IACHR] binding on us”); Tamayo v. Stephens, 740 F.3d 991, 6 997–98 (5th Cir. 2014) (noting “the federal circuit courts that have considered this issue 7 have concluded that IACHR decisions do not create a binding obligation on domestic 8 courts” and denying a stay on that basis); Roach v. Aiken, 781 F.2d 379, 381 (4th Cir. 1986) 9 (denying a stay based on IACHR’s consideration of defendant’s case and expressing doubt 10 that “any future decision of the Commission would be enforceable in the domestic courts 11 of this nation, state and federal”).7 12 Mr. Mitchell’s second argument – that the IACHR decisions are binding “because 13 they are derived, through the OAS Charter, from the American Declaration, a statement of 14 human rights norms the United States has not only adopted, but helped to draft” (id.) – is 15 equally unpersuasive. The American Declaration “is not a treaty.” Flores-Nova, 652 F.3d 16 at 494. “In the best sense, the American Declaration . . . represents a noble statement of 17 the human rights aspirations of the American States, but creates no binding set of 18 obligations.” Id.; see also Igartua v. United States, 626 F.3d 592, 603 n. 11 (1st Cir. 2010) 19 (holding that the American Declaration “is merely an aspirational document”); Garza, 253 20 F.3d at 923 (same). As a result, the Declaration is not “enforceable domestically.” Flores- 21 Nova, 652 F.3d at 495.8

22 7 Mr. Mitchell cites various court cases concerning other international tribunals. Doc. 1 at 26-27. But none of these cases concerns the IACHR, and Medellin make clear that the 23 question of whether a treaty is self-executing turns on the language and history of the treaty itself. See 552 U.S. at 506-07. 24 8 Mr. Mitchell acknowledges that the Declaration is non-binding: “The American 25 Declaration is itself a non-binding declaration of human norms[.]” Doc, 1 at 23. He argues, nonetheless, that rights recognized in the Declaration “become binding, enforceable rights 26 when applied in a specific case by the Commission, a treaty-based tribunal specifically empowered to interpret and promote the rights contained in the American Declaration.” 27 Id. But he cites no authority for this assertion, and, as explained in this order, he fails to show that the OAS Charter is self-executing as required by Medellin. Moreover, as noted 28 below, the governing OAS statute makes clear that the IACHR’s role with respect to a member country that has not ratified the America Convention is to make recommendations. 1 The Seventh Circuit in Garza looked also to the IACHR’s governing statute, the 2 Statute of the Inter-American Commission on Human Rights. 253 F.3d at 925. The court 3 noted that the statute establishes separate procedures for the IACHR depending on whether 4 the OAS member in question has or has not ratified the American Convention. Id. For 5 nations that have not ratified the Convention, like the United States, the statute gives the 6 IACHR the following powers: 7 [T]o make recommendations to the governments of the states on the adoption 8 of progressive measures in favor of human rights in the framework of their legislation, constitutional provisions and international commitments, as well 9 as appropriate measures to further observance of those rights; . . . 10 [T]o pay particular attention to the observance of the human rights referred 11 to in [certain provisions of] the American Declaration of the Rights of Man; 12 . . .

13 [T]o examine communications submitted to it, . . . and to make 14 recommendations to [the government of any member state not a Party to the Convention], when it finds this appropriate, in order to bring about more 15 effective observance of fundamental human rights . . . . 16 Id. (quoting the Statute of the Inter–American Commission on Human Rights, Arts. 18, 20) 17 (emphasis added). In other words, the Commission acts in an advisory role with respect to 18 the United States. It makes recommendations for human rights improvements.9 19 Consistent with its advisory role, the IACHR’s decision in Mr. Mitchell’s case states 20 “Conclusions and Recommendations.” Doc. 1 at 65. The list of decisions, such as the 21 finding that Mr. Mitchell should be given a new trial, are characterized as 22 “recommendations.” Id. at 26. Mr. Mitchell does not explain how these recommendations 23 can be viewed as binding law for U.S. courts.10 24

25 9 Consistent with this view, the OAS Charter authorizes the creation of the IACHR “to 26 promote the observance and protection of human rights and to serve as a consultative organ of [OAS] in these matters.” OAS Charter (Amended), Feb. 27, 1967, art. 112, 21 U.S.T. 27 691 (emphasis added).

28 10 Mr. Mitchell asserts that IACHR is “a principal organ through which the OAS accomplishes its purpose.” Doc. 1 at 19. Even if true, this fact does not make its decisions 1 In summary, Mr. Mitchell has not come close to showing that decisions of the 2 IACHR are binding in U.S. courts. The Court accordingly will deny his motion and his 3 stay request. 4 IT IS ORDERED: 5 1. Mr. Mitchell’s motion to vacate, set aside, or correct his sentence under 28 6 U.S.C. § 2255, or, in the alternative, for relief under 28 U.S.C. § 2241 7 (Doc. 1) is denied. The Clerk of Court shall enter judgment accordingly and 8 terminate this action. 9 2. Mr. Mitchell’s motion for a stay of execution (Doc. 3) is denied. 10 3. A certificate of appealability is denied. The Court cannot conclude that 11 reasonable jurists would debate the outcome in this order, nor that the issues 12 addressed in this order deserve encouragement to proceed further. Slack v. 13 McDaniel, 529 U.S. 473, 484 (2000). 14 15 Dated this 22nd day of August, 2020. 16 Daal 6 Cou 18 19 David G. Campbell Senior United States District Judge 20 21 22 23 24 binding within the United States. The Supreme Court in Medellin noted that the ICJ is the “the principal judicial organ of the United Nations,” and yet held that its decisions were not binding within this country. 552 U.S. at 499. Mr. Mitchell also cites statements by the 26|| United States acknowledging the legitimate role of the [ACHR and expressing support for its work. Doc. 1 at 25. But the statements say nothing about the effect of IACHR decisions 27|| as a matter of U.S. law, and, as noted above, there is a clear distinction between treaty obligations that bind the U.S. as a matter of international law and treaty obligations that || have the force and effect of law in this country’s courts. Medellin, 552 U.S. at 504.

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