Mitchell v. United States

958 F.3d 775

Lezmond C. MITCHELL, aka Lezmond Charles Mitchell, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 18-17031

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 13, 2019 Phoenix, Arizona

Filed April 30, 2020

IKUTA, Circuit Judge:

In May 2009, Lezmond Mitchell asked the district court for authorization to interview the jurors at his criminal trial in order to investigate potential juror misconduct. The district court denied the motion because Mitchell identified no evidence of juror misconduct, and therefore failed to show good cause. In March 2018, Mitchell filed a motion under Rule 60(b)(6) of the Federal Rules of Civil Procedure for relief from the 2009 ruling. Mitchell argued that the Supreme Court’s intervening decision in Peña-Rodriguez v. Colorado , ––– U.S. ––––, 137 S. Ct. 855, 197 L.Ed.2d 107 (2017), changed the law governing requests to interview jurors for evidence of racial bias, and that this change constituted an extraordinary circumstance justifying relief under Rule 60(b)(6). The district court denied this motion as well. We affirm.

I

A

We have described the facts of this case in detail in two prior opinions, see United States v. Mitchell , 502 F.3d 931 (9th Cir. 2007) (direct appeal) (" Mitchell I "); Mitchell v. United States, 790 F.3d 881 (9th Cir. 2015) (appeal of denial of motion under 28 U.S.C. § 2255 ) (" Mitchell II "), so we summarize them only briefly. In October 2001, Mitchell and three accomplices plotted to carjack a vehicle to use in an armed robbery of a trading post on the Navajo reservation. Mitchell and an accomplice, Johnny Orsinger, abducted 63-year-old Alyce Slim and her 9-year-old granddaughter in Slim’s GMC pickup truck. Somewhere near Sawmill, Arizona, Mitchell and Orsinger killed Slim, stabbing her 33 times and moving her mutilated body to the back seat next to her granddaughter. After driving the truck into the mountains, Mitchell dragged Slim’s body out of the car and ordered the granddaughter to get out of the truck and "lay down and die." Mitchell slit her throat twice, and then dropped rocks on her head to finish her off. Mitchell and Orsinger later returned to the scene to conceal evidence. They severed the heads and hands of both victims and pulled their torsos into the woods. Mitchell and Orsinger also burned the victims’ clothing, jewelry, and glasses.

Three days after the murders, Mitchell and two accomplices drove the GMC pickup truck to the trading post. Once there, they struck the store manager with a shotgun, threatened another employee, and stole some $5,530 from the store. Mitchell and his accomplices drove the GMC pickup truck back to a location where one of the accomplices had parked his own vehicle. Mitchell set the truck on fire and left the scene in the other vehicle.

A Navajo police officer discovered the pickup truck a mile and a half south of a town within the Navajo Indian reservation. Criminal investigators discovered evidence in the truck connecting Mitchell to both the robbery and the murders. When the FBI arrested Mitchell at an accomplice’s house, Mitchell (who was in bed) "asked for his pants, which he told an FBI agent were near a bunk bed on the floor." Mitchell I , 502 F.3d at 944. When the agent picked them up, "a silver butterfly knife fell from a pocket." Id. After the accomplice and his mother consented to a search of the house, FBI agents retrieved the silver butterfly knife. "Trace amounts of blood from the silver knife were matched to Slim." Id.

After signing a waiver of his Miranda rights, Mitchell admitted that he had been involved in the robbery and had been present when "things happened" to Slim and her granddaughter. Id. He directed Navajo police officers to the site where he and Orsinger had buried the bodies, and he told the officers "that he had stabbed the ‘old lady,’ and that the evidence would show and/or witnesses would say that he had cut the young girl’s throat twice." Id. at 944–45. He also admitted that "he and Orsinger [had] gathered rocks, and with Orsinger leading on, the two took turns dropping them on [the granddaughter’s] head." Id. "Mitchell indicated that he and Orsinger retrieved an axe and shovel, severed the heads and hands, buried the parts in a foot-deep hole, burned the victims’ clothing, and cleaned the knives in a stream." Id. Mitchell stated that it was Orsinger’s idea to sever the victims’ heads and hands "because [Mitchell] would also have severed the feet." Id.

Mitchell was indicted for eleven crimes, including premeditated first degree murder, armed carjacking resulting in death, felony murder, robbery, kidnapping, and use of a firearm in a crime of violence. The government filed a notice of intent to seek the death penalty as to Mitchell based on the charge of carjacking resulting in death.

Jury selection in Mitchell’s trial began on April 1, 2003.¹ Potential jurors filled out prescreening questionnaires, and were subjected to a twelve-day voir dire in which they were asked questions about their qualifications, including their ability to be impartial towards Native Americans. A petit jury, including one member of the Navajo Nation, convicted Mitchell on all counts.

The penalty phase began on May 14, 2003. Consistent with the Federal Death Penalty Act, 18 U.S.C. §§ 3591 – 3598, the district court instructed the jury that "in your consideration of whether the death sentence is appropriate, you must not consider the race, color, religious beliefs, national origin, or sex of either the defendant or the victims," and that "[y]ou are not to return a sentence of death unless you would return a sentence of death for the crime in question without regard to race, color, religious beliefs, national origin, or sex of either the defendant or any victim." See 18 U.S.C. § 3593(f). In addition, the jury was required to "return to the court a certificate, signed by each juror, that consideration of the race, color, religious beliefs, national origin, or sex of the defendant or any victim was not involved in reaching his or her individual decision and that the individual juror would have made the same recommendation regarding a sentence for the crime in question no matter what the race, color, religious beliefs, national origin, or sex of the defendant or any victim may be." Id. Each juror signed the certificate. Mitchell I , 502 F.3d at 990.

In order to impose the death penalty under the Federal Death Penalty Act, the jury was required to "unanimously find beyond a reasonable doubt: (1) the defendant was 18 years of age or older at the time of the offense; (2) the defendant had at least one of four enumerated mentes reae (often referred to as ‘gateway intent factors’); and (3) the existence of at least one of sixteen statutorily defined aggravating factors." Id. at 973 (internal citations omitted). Here, the jury found the four gateway intent factors, the necessary statutory aggravating factors, and one non-statutory aggravating factor. Id. at 946. "After weighing the aggravating and mitigating factors, the jury recommended imposition of a sentence of death." Id.

The court sentenced Mitchell to death on September 15, 2003. As the jurors were discharged, the district judge stated:

You are free to talk about the case with anyone or not talk about it as you wish. If someone asks you about the case, and you don’t want to talk about it, just advise them of the fact and they will honor your request.

The lawyers will be standing in the hallway as you exit. If you choose to talk to them, if you have any questions for them, you may approach them and ask them questions. They’ve been instructed not to approach you. It’s only if you want to talk or discuss the case with lawyers on either side as you wish, you may do. So if you decide to just exit the building, you may.

On direct appeal, Mitchell contended that the procedures used to empanel jurors caused an under-representation of Native Americans. Id. at 949–50. Mitchell also argued that his constitutional rights "were violated when the government elicited testimony bearing on race, religion and cultural heritage, and made statements in closing argument impermissibly plying on the same factors." Id. at 989. We rejected these arguments. With respect to the government’s statements in closing, we "accept[ed] the jurors’ assurance [in their certifications] that no impermissible considerations of race or religion factored into the verdict." Id. at 990.

Mitchell alleged additional errors related to race and religion at the penalty phase. He argued that the government erred by suggesting, in closing, that "Mitchell turned his back on his religious and cultural heritage." Id. at 994–95. We rejected this argument as well. Because Mitchell had introduced a letter from the Attorney General of the Navajo Nation indicating opposition to capital punishment and relied on this evidence in mitigation, we held that "it was not plainly erroneous for the government to challenge the credibility of Mitchell’s reliance." Id. at 995.

B

Nearly six years later, in May 2009, Mitchell filed a motion in the district court requesting to interview members of the jury in order to ascertain "whether any member of the jury panel engaged in ex parte contacts, considered extrajudicial evidence, allowed bias or prejudice to cloud their judgment, or intentionally concealed or failed to disclose material information relating to their qualifications to serve as jurors in [his] case."

Mitchell’s request to interview jurors was governed by District of Arizona Local Rule Civil 39.2,² which requires a defendant seeking permission to interview jurors to file "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." The rule provides that permission to interview jurors "will be granted only upon the showing of good...