United States v. 2020-08-19 | 20-99009 | USA V. LEZMOND MITCHELL | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEZMOND C. MITCHELL,
Defendant-Appellant.
No. 20-99009
D.C. No.
3:01-cr-01062-DGC-1
OPINION
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted August 18, 2020
Pasadena, California
Filed August 19, 2020
Before: Sandra S. Ikuta, Morgan Christen, and
Andrew D. Hurwitz, Circuit Judges.
Per Curiam Opinion

UNITED STATES V. MITCHELL2
SUMMARY
*
Stay of Execution
The panel denied Lezmond Mitchell’s emergency motion
to stay his execution pending appeal and affirmed the district
court’s order denying his motion to strike his execution
warrant, vacate the execution, or enjoin violation of the
district court’s original judgment.
Mitchell argued that if the Bureau of Prisons follows its
execution protocols, his execution will not be implemented in
the manner prescribed by the law of Arizona, and thus will be
in violation of the judgment and the Federal Death Penalty
Act, 18 U.S.C. § 3596(a) (FDPA).
The panel assumed without deciding that the Arizona
Department of Corrections’s Department Order 710
(Department Order Manual) constitutes “law of the State” for
purposes of the FDPA and the judgment, and held that
procedures that do not effectuate death fall outside the scope
of § 3596(a). The panel considered the six purported
inconsistencies Mitchell identified between the BOP’s
execution protocol and procedures in the Department Order
Manual, and concluded that Mitchell did not carry his burden
of proving a reasonable probability that his execution will be
carried out in a manner inconsistent with Arizona law or that
it is more probable than not that he will suffer any irreparable
harm. The panel concluded that Mitchell is therefore not
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

UNITED STATES V. MITCHELL3
entitled to a stay pending appeal or to the underlying
injunctive relief he seeks.
COUNSEL
Jonathan C. Aminoff (argued) and Celeste Bacchi, Deputy
Federal Public Defenders; Cuahtemoc Ortega, Interim
Federal Public Defender; Office of the Federal Public
Defender, Los Angeles, California; for Defendant-Appellant.
William G. Voit (argued), Assistant United States Attorney;
Krissa M. Lanham, Appellate Division Chief; Michael
Bailey, United States Attorney; United States Attorney’s
Office, Phoenix, Arizona; for Plaintiff-Appellee.
OPINION
PER CURIAM:
Lezmond Mitchell has filed an emergency motion to stay
his execution pending appeal of the denial of his motion to
strike his execution warrant, vacate his execution, and enjoin
violation of the district court’s original judgment. We deny
the motion because Mitchell has not carried his burden of
demonstrating either that he is likely to succeed on the merits
or that it is probable that he would suffer an irreparable injury
in the absence of a stay.

UNITED STATES V. MITCHELL4
I
Lezmond Mitchell was convicted of numerous offenses
and sentenced to death in September 2003.
1
The district
court’s judgment (the “Judgment”) provides, “When the
sentence is to be implemented, the Attorney General shall
release the defendant to the custody of the United States
Marshal, who shall supervise implementation of the sentence
in the manner prescribed by the law of the State of Arizona.”
2

The parties agree that, for present purposes, there is no
meaningful difference between the language of the Judgment
and the language of the Federal Death Penalty Act (FDPA).
See 18 U.S.C. § 3596(a).
3
1
We have described the facts of this case in detail in three prior
opinions. See generally Mitchell v. United States, 958 F.3d 775 (9th Cir.
2020); Mitchell v. United States, 790 F.3d 881 (9th Cir. 2015); United
States v. Mitchell, 502 F.3d 931 (9th Cir. 2007).
2
The district court amended the Judgment on January 8, 2004, but left
the provision quoted above unchanged.
3
The FDPA provides, in pertinent part:
A person who has been sentenced to death pursuant to
this chapter shall be committed to the custody of the
Attorney General until exhaustion of the procedures for
appeal of the judgment of conviction and for review of
the sentence. When the sentence is to be implemented,
the Attorney General shall release the person sentenced
to death to the custody of a United States marshal, who
shall supervise implementation of the sentence in the
manner prescribed by the law of the State in which the
sentence is imposed. If the law of the State does not
provide for implementation of a sentence of death, the
court shall designate another State, the law of which
does provide for the implementation of a sentence of

UNITED STATES V. MITCHELL5
On July 25, 2019, T.J. Watson, the warden of the Federal
Correctional Complex at Terre Haute, Indiana, served
Mitchell with a letter indicating that the Bureau of Prisons
had set an execution date of December 11, 2019.
4
On
October 4, 2019, however, we stayed Mitchell’s execution
pending resolution of his third appeal. Mitchell v. United
States, No. 18-17031, ECF No. 26 (Oct. 4, 2019).
On July 29, 2020, after we rejected Mitchell’s appeal but
before the mandate issued, see Fed. R. App. P. 41(b), Watson
served Mitchell with another letter indicating that the Bureau
of Prisons had set a new execution date of August 26, 2020
(the “Execution Warrant”). The Execution Warrant states
that it “serve[s] as official notification that pursuant to
[28 C.F.R. § 26.3(a)(1)], the Director of the Federal Bureau
of Prisons has set August 26, 2020, as the date for your
execution by lethal injection.”
5
On August 6, 2020, Mitchell filed a motion in district
court to strike the Execution Warrant, vacate his execution
date, and enjoin any violation of the Judgment. Mitchell
argued that if the Bureau of Prisons follows its execution
protocols his execution will not be “implement[ed] . . . in the
death, and the sentence shall be implemented in the
latter State in the manner prescribed by such law.
18 U.S.C. § 3596(a).
4
On July 31, 2019, Watson served Mitchell with an amended letter
that corrected the name of the sentencing judge, which had been misstated
on the prior version.
5
28 C.F.R. § 26.3(a)(1) establishes how the Bureau of Prisons will
determine the date and time for an execution.

UNITED STATES V. MITCHELL6
manner prescribed by the law of [Arizona]” and thus will be
in violation of the Judgment and 18 U.S.C. § 3596(a). In
support of his argument, Mitchell identified specific
procedures set forth in Arizona statutes, the Arizona Rules of
Criminal Procedure, and the Arizona Department of
Corrections’s Department Order 710 (the “Department Order
Manual”). According to Mitchell, the Bureau of Prisons’
protocols are inconsistent with or allow it to deviate from
these Arizona procedures.
The district court denied the motion. Mitchell filed a
notice of appeal with the district court and moved to stay his
execution pending resolution of the appeal. We heard
argument on Tuesday, August 18, 2020.
II
We consider Mitchell’s motion for a stay pending appeal
using the “traditional test for stays” set out in Nken v. Holder,
556 U.S. 418, 433 (2009). This test considers four factors:
“(1) whether the stay applicant has made a strong showing
that he is likely to succeed on the merits; (2) whether the
applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the
public interest lies.” Id. at 434 (quoting Hilton v. Braunskill,
481 U.S. 770, 776 (1987)). The party seeking the stay bears
the burden of showing that these factors favor a stay. Id. at
433–34. “The first two factors . . . are the most critical,” and
the “mere possibility” of success or irreparable injury is
insufficient to satisfy them. Id. at 434 (cleaned up). As to
likelihood of success, the movant must show a “reasonable
probability” or “fair prospect” of success. Leiva-Perez v.
Holder, 640 F.3d 962, 967 (9th Cir. 2011) (per curiam)

UNITED STATES V. MITCHELL7
citation omitted). As to irreparable harm, the standard is
higher: the movant must demonstrate that irreparable harm
is probable—as opposed to merely possible—if the stay is not
granted; that is, irreparable harm must be “the more probable
or likely outcome.” Id. at 968. We consider the final two
factors only “[o]nce an applicant satisfies the first two.”
Nken, 556 U.S. at 435.
Mitchell argues that he is entitled to a stay pending appeal
of the district court’s order because the district court erred in
denying his motion for injunctive relief. Mitchell claims that
on appeal of the district court’s order, he would have a
likelihood of success on the merits of his claim that
inconsistencies between the Bureau of Prisons’ protocol for
implementing his execution and Arizona’s procedures violate
the Judgment and the FDPA. Mitchell likewise asserts that
he would prevail on the second injunctive relief factor, that he
will suffer an irreparable harm, due to the possibility that he
“could be executed by means of an illegal protocol.”
For purposes of Mitchell’s stay motion, we need not
comprehensively delineate the scope of the FDPA. Cf. In re
Execution Protocol Cases, 955 F.3d 106 (D.C. Cir. 2020),
cert. denied sub nom. Bourgeois v. Barr, No. (19A1050),
2020 WL 3492763 (U.S. June 29, 2020). We assume without
deciding that the Department Order Manual constitutes “law
of the State” for purposes of the FDPA and the Judgment.
See 18 U.S.C. § 3596(a) (requiring the sentence to be
implemented “in the manner prescribed by the law of the
State in which the sentence is imposed”). In addition, we
hold that procedures that do not effectuate death fall outside
the scope of 18 U.S.C. § 3596(a). See Peterson v. Barr,
965 F.3d 549, 554 (7th Cir. 2020). The FDPA incorporates
only those state laws that prescribe the manner for

UNITED STATES V. MITCHELL8
“implementation” of a death sentence. See 18 U.S.C.
§ 3596(a) (“When the sentence is to be implemented, the
Attorney General shall release the person sentenced to death
to the custody of a United States marshal, who shall supervise
implementation of the sentence in the manner prescribed by
the law of the State in which the sentence is imposed.”). In
this context, “implement” means “to carry out” or “to give
practical effect to and ensure of actual fulfillment by concrete
measures.” Implement, Webster’s Third New International
Dictionary 1134 (1961). Therefore, 18 U.S.C. § 3596(a)
addresses, at most, state laws that set forth procedures for
giving practical effect to a sentence of death. We therefore
agree with the Seventh Circuit’s conclusion that, even under
a broad reading, the FDPA incorporates “only ‘those [state]
procedures that effectuate the death, including choice of
lethal substances, dosages, vein-access procedures, and
medical-personnel requirements.’” Peterson, 965 F.3d at 554
(citation omitted).
In his stay motion, Mitchell identifies six purported
inconsistencies between the Bureau of Prisons’ execution
protocol and the procedures in the Department Order
Manual.
6
We consider each in turn.
6
In district court, Mitchell identified five additional purported
inconsistencies relating to: (1) the presence of witnesses and spiritual
advisers, Ariz. Rev. Stat. § 13-758; (2) notice of an execution date, Ariz.
Rev. Stat. § 13-759; (3) judicial postponement of execution dates upon a
finding of impracticality, Ariz. R. Crim. P. 31.23(c); (4) accommodations
for defense counsel during the execution, such as the provision of
temporary office space and access to mobile devices; and (5) discretion
given the Director of the Arizona Department of Corrections to modify the
execution protocol. Because Mitchell has not raised these purported
inconsistencies in connection with his motion to stay his execution
pending appeal, we do not consider them. See Greenwood v. F.A.A.,

UNITED STATES V. MITCHELL9
First, he points to the Department Order Manual’s
requirement that the IV Team be “currently certified or
licensed within the United States to place IV lines.” The
Bureau of Prisons’ protocol provides that “[q]ualified
personnel includes currently licensed physicians, nurses,
EMTs, Paramedics, Phlebotomists, other medically trained
personnel, including those trained in the United States
Military having at least one year professional experience and
other personnel with necessary training and experience in a
specific execution related function.” We see little difference
between these requirements; both require that the persons
placing IV lines have the appropriate qualifications. Given
the substantial overlap between the two protocols, Mitchell
argues only that it is possible that the “[q]ualified personnel”
referred to in the Bureau of Prisons’ protocol might not be
“currently certified or licensed within the United States to
place IV lines.”
As to the second and third examples of purported
inconsistencies, Mitchell points to the Department Order
Manual’s requirements that “[a] central femoral venous line
will not be used unless the person placing the line is currently
qualified” to do so and that “[t]he IV Team shall be
responsible for inserting either peripheral IV catheters or a
28 F.3d 971, 977 (9th Cir. 1994). Moreover, the first four purported
inconsistencies fall outside the scope of 18 U.S.C. § 3596(a), because they
are not pertinent to effectuating death. See Peterson, 965 F.3d at 554.
At oral argument, Mitchell argued for the first time that the Bureau
of Prisons’ protocol calls for the use of a saline flush in a manner that is
different from the Department Order Manual. Mitchell forfeited any
reliance on this difference because it was neither raised to the district court
nor raised in the briefing. See Sierra Med. Servs. All. v. Kent, 883 F.3d
1216, 1223 (9th Cir. 2018).

UNITED STATES V. MITCHELL10
central femoral line as determined by the Director acting
upon the recommendation of the IV Team Leader.” The
Bureau of Prisons’ protocol provides that a “suitable venous
access line or lines will be inserted and inspected by qualified
personnel” and that “[t]he Director or designee shall
determine the method of venous access (1) based on the
training and experience of personnel establishing the
intravenous access; (2) to comply with specific orders of
federal courts; or (3) based upon a recommendation from
qualified personnel.” Again, we see little difference between
the protocols; both give the Director discretion to determine,
based on a recommendation from qualified personnel, the
method of venous access, and both protocols require that the
venous access line be placed by qualified personnel. At oral
argument, Mitchell primarily focused on the possibility that
under the Bureau of Prisons’ protocol, the decision to insert
a peripheral IV catheter or a central femoral line may be
made without a recommendation of a person “currently
certified or licensed within the United States to place IV
lines.” This argument therefore merges with his first
claim—that it is possible that the Bureau of Prisons may
allow persons without the proper qualifications to place IV
lines.
Fourth, Mitchell points to the Department Order Manual’s
requirement that a chemical used in execution “have an
expiration or beyond-use date that is after the date that an
execution is carried out.” The Bureau of Prisons’ protocol
also prohibits the use of expired drugs: its March 10, 2020
General Guidelines for Compounding and Testing
Pentobarbital Sodium for Use in Executions (the “General
Guidelines”) provide that an injectable solution is “available
for use” only if, among other things, “its expiration date has
not passed.” Therefore, the state and federal requirements are

UNITED STATES V. MITCHELL11
substantially the same. Mitchell argues only that it is possible
that the Bureau of Prisons will not comply with its protocol
or will make last-minute changes to its protocol.
Fifth, Mitchell points to the Department Order Manual’s
requirement that the “decision to use a compounded or non-
compounded chemical . . . be provided to the inmate and their
counsel of record in writing at the time the state files a
request for Warrant of Execution in the Arizona Supreme
Court.” Because the Bureau of Prisons has made public its
decision to use compounded Sodium Pentobarbital in the
General Guidelines, Mitchell has received notice that the
Bureau of Prisons intends to use compounded Pentobarbital
Sodium to carry out the execution.
Sixth, Mitchell points to the Department Order Manual’s
requirement that “[a] quantitative analysis of any
compounded or non-compounded chemical to be used in the
execution shall be provided upon request within ten calendar
days after the state seeks a Warrant of Execution.” At oral
argument, Mitchell conceded that he had not requested such
a quantitative analysis from the Bureau of Prisons, but such
information has been made readily available to him. The
government represented in district court that the “BOP has
tested its compounded pentobarbital for quality assurance,”
and has publicly filed certificates of analysis and laboratory
reports regarding Pentobarbital Sodium in the United States
District Court for the District of Columbia. See In re BOP
Execution Protocol Cases, 1:19-mc-00145-TSC, ECF No.
39-1 at 975–1020; ECF No. 97-2 at 1–9.
7
7
This procedure arguably also falls outside the scope of 18 U.S.C.
§ 3596(a), because providing such information is not pertinent to the
effectuation of death. See Peterson, 965 F.3d at 554.

UNITED STATES V. MITCHELL12
We are not persuaded by Mitchell’s arguments. The
Bureau of Prisons’ protocol and the Department Order
Manual procedures on which Mitchell relies are largely
indistinguishable. To the extent there is any difference
between the federal and Arizona procedures with respect to
the first four examples, the Bureau of Prisons has provided a
declaration certifying that it will comply with those
procedures.
8
As to the fifth and sixth examples, the Bureau
of Prisons has complied with the Department Order Manual’s
procedures. Therefore, Mitchell has not carried his burden of
proving a “reasonable probability,” Leiva-Perez, 640 F.3d
at 967 (citations omitted), that his execution will be carried
out in a manner inconsistent with Arizona law (assuming that
the Department Order Manual is state law). It is not enough
to show a “mere possibility” that the Bureau of Prisons might
use protocols inconsistent with Arizona procedures. Id.
(cleaned up). Nor has Mitchell carried his burden of showing
that it is more probable than not, id. at 968, that he will suffer
any irreparable harm. Therefore, Mitchell is not entitled to
the “extraordinary remedy” of a stay pending appeal, Nken,
556 U.S. at 428 (citation omitted), and we do not address the
final two factors, see id. at 435.
***
In sum, Mitchell has not carried his burden of
demonstrating a likelihood of success on the merits or that it
is probable that he will suffer irreparable harm, and therefore
8
Mitchell filed a reply to the Bureau of Prisons’ declaration, to which
he attached a 37-page document setting forth additional purported
inconsistencies between the Bureau of Prisons’ protocol and Arizona
procedures. Reliance on these purported differences was forfeited. See
supra note 6; Greenwood, 28 F.3d at 977.

UNITED STATES V. MITCHELL13
he is not entitled to a stay or to the underlying injunctive
relief he seeks. We also recognize that the Supreme Court
has instructed us that last-minute stays of executions “should
be the extreme exception, not the norm.” Barr v. Lee, No.
20A8, 2020 WL 3964985, at *2 (U.S. July 14, 2020) (citation
omitted). We therefore deny Mitchell’s motion for a stay of
execution pending appeal and affirm the district court’s order
denying his motion to strike the Execution Warrant, vacate
the execution date, or enjoin violation of the Judgment.
IT IS SO ORDERED.