United States v. Lezmond Mitchell
971 F.3d 993
| 9th Cir. | 2020Background
- Lezmond Mitchell, federally sentenced to death in 2003, moved to strike a Bureau of Prisons (BOP) Execution Warrant and enjoin implementation, arguing the BOP’s protocol conflicts with Arizona law and the Judgment/FDPA.
- BOP served an execution date after this Court rejected Mitchell’s appeal but before the mandate issued; Mitchell sought emergency relief in district court and a stay pending appeal.
- Mitchell identified six specific alleged inconsistencies between BOP protocols and Arizona’s Department Order Manual (e.g., qualifications for IV placement, venous-access choices, drug expiration rules, notice and testing of compounded drugs).
- The district court denied relief; Mitchell appealed and moved for a stay pending appeal.
- The Ninth Circuit applied the Nken stay test and assumed (without deciding) the Department Order Manual could qualify as "law of the State" under 18 U.S.C. § 3596(a), but held FDPA incorporates only state procedures that effectuate death (method, drugs, personnel, etc.).
- The court found the BOP protocols largely aligned with Arizona procedures, the BOP provided a declaration promising compliance and public testing documents were available; Mitchell failed to show a reasonable probability of success or probable irreparable harm, so the stay and injunctive relief were denied.
Issues
| Issue | Mitchell's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether BOP execution protocol conflicts with Arizona law under FDPA | BOP protocol permits procedures inconsistent with Arizona Department Order Manual, violating the Judgment and § 3596(a) | BOP protocol and Arizona rules are substantially similar; BOP declared it will comply and has publicly provided testing/docs | No conflict shown; Mitchell failed to show likelihood of success on merits |
| Qualifications of personnel who place IV lines | Arizona requires IV team to be currently certified/licensed in U.S.; BOP may allow unlicensed or foreign-trained personnel | BOP requires "qualified personnel" and includes U.S.-trained/licensed categories; declaration assures compliance | Substantial overlap; possibility of noncompliance insufficient to meet stay standard |
| Drug sourcing, expiration, and testing (compounded pentobarbital) | Arizona requires expiration dates, notice of compounded drugs, and quantitative analysis within 10 days; BOP may not follow these | BOP General Guidelines prohibit expired drugs, publicly disclosed intention to use compounded pentobarbital, and has filed certificates/lab reports | BOP has complied or represented compliance; Mitchell did not request analyses; no probable irreparable harm shown |
| Scope of FDPA incorporation | FDPA requires implementation "in the manner prescribed by the law of the State" — Mitchell urges broad incorporation of Arizona procedures | FDPA incorporates only state procedures that "effectuate" death (methods, drugs, personnel, dosages, vein access) | Court adopts narrower scope (citing Peterson); many listed Arizona procedures fall outside § 3596(a) |
Key Cases Cited
- Nken v. Holder, 556 U.S. 418 (2009) (sets four-factor test for stays pending appeal)
- Hilton v. Braunskill, 481 U.S. 770 (1987) (stay/injunction factor framework)
- Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011) (standards for likelihood of success and probable irreparable harm for stays)
- Peterson v. Barr, 965 F.3d 549 (7th Cir. 2020) (FDPA incorporates only state procedures that effectuate death)
- In re Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020) (execution-protocol litigation context)
- Greenwood v. F.A.A., 28 F.3d 971 (9th Cir. 1994) (forfeiture rule for arguments not raised earlier)
- Sierra Med. Servs. All. v. Kent, 883 F.3d 1216 (9th Cir. 2018) (forfeiture of late-raised claims)
- Mitchell v. United States, 958 F.3d 775 (9th Cir. 2020) (prior Ninth Circuit opinions describing case history)