United States v. 2020-08-23 | 20-99010 | LEZMOND MITCHELL V. USA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEZMOND C. MITCHELL,
Petitioner-Appellant,
v.
UNITED STATES OF
AMERICA,
Respondent-Appellee.
No. 20-99010
D.C. Nos.
3:20-cv-08217-DGC-ESW
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
Submitted August 23, 2020
*
San Francisco, California
Filed August 23, 2020
Before: Sandra S. Ikuta, Morgan Christen, and
Andrew D. Hurwitz, Circuit Judges.
Per Curiam Opinion
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

MITCHELL V. UNITED STATES2
SUMMARY
**
Habeas Corpus / Death Penalty
The panel denied Lezmond Mitchell’s request for a
certificate of appealability to appeal the district court’s denial
of his motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255.
Mitchell’s motion asserted that his conviction and death
sentence must be vacated, that he must be released or given
a new trial, and that he cannot be sentenced to death after a
new trial, because an August 12, 2020 report by the Inter-
American Commission on Human Rights (IACHR), an
organization formed under the auspices of the Organization
of American States, concluded that Mitchell’s trial and
sentence violated his rights under the American Declaration,
a statement of human rights norms the United States has
adopted.
The panel concluded that reasonable jurists would not
find debatable the district court’s conclusion that the
IACHR’s decision is not binding in federal court. The panel
concluded that Mitchell therefore did not meet the
requirements for a certificate of appealability.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

MITCHELL V. UNITED STATES3
COUNSEL
Cuahtemoc Ortega, Interim Federal Public Defender;
Jonathan C. Aminoff and Celeste Bacchi, Deputy Federal
Public Defenders; Office of the Federal Public Defender, Los
Angeles, California; for Defendant-Appellant.
Krissa M. Lanham, Assistant United States Attorney; Michael
Bailey, United States Attorney; United States Attorney’s
Office, Phoenix, Arizona; for Plaintiff-Appellee.
OPINION
PER CURIAM:
Lezmond Mitchell seeks a certificate of appealability so
that he may appeal the district court’s denial of his motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255.
1
Because the motion did not make “a substantial
showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), we deny a certificate of appealability.
Because we have described the facts of this case in detail
in three prior opinions, see generally Mitchell v. United
1
The district court entered an order denying Mitchell’s “Motion to
Vacate, Set Aside or Correct Sentence by a Person in Federal Custody
Pursuant to 28 U.S.C. § 2255, in the Alternative, Motion for Relief
Pursuant to 28 U.S.C. § 2241,” on August 21, 2020, and the district court
entered an amended order the next day to “correct[] minor errors in and
make[] minor wording changes to the version filed on August 21, 2020.”
There is no material difference between the two orders, so we simply
consider the substance of the district court’s ruling, as embodied in both
orders.

MITCHELL V. UNITED STATES4
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), we do not repeat them
here and instead turn to the matter before us. On August 20,
2020, Mitchell moved in district court to vacate, set aside, or
correct his sentence under § 2255 or, in the alternative, under
§ 2241. His motion asserted that a report issued on August
12, 2020, by the Inter-American Commission on Human
Rights (IACHR)—an organization formed under the auspices
of the Organization of American States (OAS)—“created
rights in Mitchell under international law that are binding on
the United States for two reasons: (1) because they are
derived directly from the OAS Charter, a treaty within the
meaning of the U.S. Constitution; and (2) because they are
derived, through the OAS Charter, from the American
Declaration, a statement of human rights norms the United
States has not only adopted, but helped to draft.” Because the
IACHR concluded that Mitchell’s trial and sentence violated
Mitchell’s rights under the American Declaration, Mitchell
argued, his conviction and death sentence must be vacated, he
must be released or given a new trial, and he cannot be
sentenced to death after a new trial.
The district court ruled that it had jurisdiction to consider
Mitchell’s § 2255 motion and that the motion was not an
improper “second or successive” motion. See 28 U.S.C.
§ 2255(h).
2
On the merits, the court rejected Mitchell’s
2
The government argues that the district court lacked jurisdiction
because Mitchell’s motion was an improper “second or successive”
motion, for which Mitchell did not have the necessary authorization.
28 U.S.C. § 2255(h). Because we conclude that Mitchell’s motion does
not make “a substantial showing of the denial of a constitutional right,” id.

MITCHELL V. UNITED STATES5
argument that either the OAS Charter or the American
Declaration makes an IACHR decision as to a federal
criminal case binding as a matter of law. The district court
therefore denied Mitchell’s § 2255 motion and a motion to
stay the execution.
3
The district court also denied a certificate
of appealability.
Mitchell may not appeal from the district court’s order
unless we issue a certificate of appealability. See 28 U.S.C.
§ 2253(c)(1)(B). “A certificate of appealability may issue . . .
only if the applicant has made a substantial showing of the
denial of a constitutional right.” Id. § 2253(c)(2). To satisfy
this standard, the applicant must show that “jurists of reason
could disagree with the district court’s resolution of his [case]
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In making
this determination, we are limited “to a threshold inquiry into
the underlying merit of [the] claims,” Buck v. Davis, 137
S. Ct. 759, 774 (2017) (quoting Miller-El, 537 U.S. at 327),
and this inquiry “should be decided without ‘full
consideration of the factual or legal bases adduced in support
of the claims,’” id. at 773 (quoting Miller-El, 537 U.S. at
336).
§ 2253(c)(2), we need not reach this issue, see Lopez v. Ryan, 678 F.3d
1131, 1139 n.2 (9th Cir. 2012); see also Slack v. McDaniel, 529 U.S. 473,
485 (2000).
3
In his reply brief, Mitchell argued that he was “entitled to bring his
claim under section 2241” if the district court held that his motion was an
improper “second or successive” motion. The district court did not
address this issue given its conclusion that Mitchell’s motion was not
“second or successive,” and because Mitchell does not raise this issue
before us, we do not consider it.

MITCHELL V. UNITED STATES6
We conclude that reasonable jurists would not find
debatable the district court’s conclusion that the IACHR’s
decision is not binding in federal court. First, the district
court concluded that IACHR rulings do not have binding
power within the United States by virtue of the OAS Charter
because “[t]he OAS Charter is not self-executing, and
Congress has passed no statute to implement it.” The district
court correctly noted that “every federal court of appeals that
has addressed this issue ‘has concluded that IACHR decisions
do not have domestic legal force.’” Am. Order at 8–9 (citing
Cardenas v. Stephens, 820 F.3d 197, 203 (5th Cir. 2016);
Tamayo v. Stephens, 740 F.3d 991, 997–98 (5th Cir. 2014)
(per curiam); In re Hicks, 375 F.3d 1237, 1241 n.2 (11th Cir.
2004); Garza v. Lappin, 253 F.3d 918, 925–26 (7th Cir.
2001); Roach v. Aiken, 781 F.2d 379, 381 (4th Cir. 1986) (per
curiam)). Second, the district court rejected Mitchell’s
argument that “IACHR decisions are binding ‘because they
are derived, through the OAS Charter, from the American
Declaration’” on the ground that “[t]he American Declaration
‘is not a treaty’” and “creates no binding set of obligations.”
The district court accurately explained that the IACHR’s
governing statute, the Statute of Inter-American Commission
on Human Rights, does not give the IACHR power to make
binding rulings with respect to nations, like the United States,
that have not ratified the American Convention. Rather, the
IACHR’s authority is limited to making non-binding
recommendations for human-rights improvements. These
conclusions are not reasonably debatable.
In his motion for a certificate of appealability before us
now, Mitchell reiterates his argument that the IACHR’s final
decision gave him a treaty-based right to have the United
States respect and enforce the IACHR’s determination but

MITCHELL V. UNITED STATES7
provides no meaningful support for this claim.
4
Nor does
Mitchell raise any other argument that would make the
district court’s conclusions debatable. Under these
circumstances, jurists of reason would not debate whether
Mitchell’s motion makes “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2).
5
Nor
would they conclude that the “issues presented are adequate
to deserve encouragement to proceed further.” Buck, 137
S. Ct. at 773 (quoting Miller-El, 537 U.S. at 327). Because
Mitchell has not met the requirements for a certificate of
appealability, we may not issue one.
CERTIFICATE OF APPEALABILITY DENIED.
6
4
The district court determined that Mitchell waived the argument,
raised for the first time in his reply brief, that even if the OAS Charter is
not self-executing, it still may be the source of enforceable rights.
Reasonable jurists would not debate the court’s conclusion. See Zamani
v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not
consider arguments raised for the first time in a reply brief.”). In any
event, the court reasonably determined that Mitchell failed to cite any
language in the Charter establishing that IACHR decisions could be the
source of enforceable rights in federal court, and in the absence of such
language, no reasonable jurist would agree with Mitchell’s argument. See
Medellin v. Texas, 552 U.S. 491, 504–06 (2008); Flores-Nova v. Attorney
Gen. of U.S., 652 F.3d 488, 494 (3d Cir. 2011) (per curiam).
5
We assume without deciding that Mitchell’s motion raised a claim
that he was denied a constitutional right. See, e.g., Medellin v. Dretke,
544 U.S. 660, 666 (2005) (per curiam); Slack, 529 U.S. at 483–84; United
States v. Mikels, 236 F.3d 550, 551 (9th Cir. 2001); Murphy v. Netherland,
116 F.3d 97, 100 (4th Cir. 1997).
6
Because we decline to issue a certificate of appealability, Mitchell
may not appeal the district court’s order, see 28 U.S.C. § 2253(c)(1)(B),
and is therefore not entitled to a stay pending appeal. Accordingly, the
Motion for a Stay of Execution is DENIED AS MOOT.