Lezmond Mitchell v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

LEZMOND C. MITCHELL, No. 18-17031
AKA Lezmond Charles
Mitchell, D.C. Nos.
Petitioner-Appellant, 3:09-cv-08089-DGC
3:01-cr-01062-DGC-1
v.

UNITED STATES OF AMERICA, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding

Argued and Submitted December 13, 2019
Phoenix, Arizona

Filed April 30, 2020

Before: Sandra S. Ikuta, Morgan Christen,
and Andrew D. Hurwitz, Circuit Judges.

Opinion by Judge Ikuta;
Concurrence by Judge Christen;
Concurrence by Judge Hurwitz
2 MITCHELL V. UNITED STATES

SUMMARY*

Criminal / Fed. R. Civ. P. 60(b) / 28 U.S.C. § 2255

The panel affirmed the district court’s denial of Lezmond
Mitchell’s motion pursuant to Fed. R. Civ. P. 60(b) for relief
from the district court’s denial of his 2009 motion for
authorization to interview jurors at his 2003 criminal trial in
order to investigate potential juror misconduct.

Mitchell argued that the Supreme Court’s intervening
decision in Peña-Rodriguez v. Colorado, 137 S. Ct. 855
(2017), which held that jury statements demonstrating racial
animus could be admissible in a proceeding inquiring into the
validity of the verdict, 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 panel held that the district court had jurisdiction to
decide the Rule 60(b) motion. The panel explained that the
motion, which at best would give Mitchell the opportunity to
attempt to develop a claim that the jurors were biased, does
not present a substantive claim on the merits and thus is not
a disguised second or successive 28 U.S.C. § 2255 motion.

The panel held that Mitchell presents no extraordinary
circumstances or district court errors that would justify
reopening his case, and that the district court therefore did not
abuse its discretion by denying the Rule 60(b) motion. The

*
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 STATES 3

panel explained that although Peña-Rodriguez established a
new exception to Fed. R. Evid. 606(b), which generally
prohibits jurors from testifying regarding their deliberations,
this change in law left untouched the law governing
investigating and interviewing jurors and thus did not give
rise to “extraordinary circumstances” for purposes of Rule
60(b).

Concurring, Judge Christen wrote that it is worth pausing
to consider why Mitchell, who did not receive the death
penalty for his murder convictions, faces the prospect of
being the first person to be executed by the federal
government for an intra-Indian crime, committed in Indian
country, by virtue of a conviction for carjacking resulting in
death.

Concurring, Judge Hurwitz wrote to suggest that the
current Executive take a fresh look at the wisdom of imposing
the death penalty in this case in which the crimes were
committed by a Navajo against Navajos entirely within the
territory of the sovereign Navajo Nation, and where the
Navajo Nation, and members of the victims’ family, have
opposed imposition of the death penalty on the defendant.

COUNSEL

Jonathan C. Aminoff (argued) and Celeste Bacchi, Deputy
Federal Public Defenders; Amy M. Karlin, Interim Federal
Public Defender; Federal Public Defender’s Office, Los
Angeles, California; for Petitioner-Appellant.
4 MITCHELL V. UNITED STATES

William G. Voit (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Michael Bailey,
United States Attorney; United States Attorney’s Office,
Phoenix, Arizona; for Respondent-Appellee.

OPINION

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,
137 S. Ct. 855 (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
 MITCHELL V. UNITED STATES 5

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.”
6 MITCHELL V. UNITED STATES

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.
 MITCHELL V. UNITED STATES 7

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

1
Then District Judge Mary Murguia presided over the trial and
sentencing.
8 MITCHELL V. UNITED STATES

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
 MITCHELL V. UNITED STATES 9

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.”
10 MITCHELL V. UNITED STATES

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 cause.” Mitchell argued that good cause existed
because an investigation into potential juror misconduct was
a necessary part of any federal capital post-conviction
investigation. Despite lacking evidence of juror impropriety,
Mitchell speculated that jurors could have been affected by
the prosecutor’s comment regarding Mitchell’s turning his
back on the Navajo religion. In connection with this
argument, Mitchell cited United States v. Henley, 238 F.3d
1111, 1120 (9th Cir. 2001), to support his argument that Rule

2
Local Rule Civil 39.2(b) states:

Interviews with jurors after trial by or on behalf of
parties involved in the trial are prohibited except on
condition that the attorney or party involved desiring
such an interview file with the Court 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. Approval for the interview
of jurors in accordance with the interrogatories and
affidavit so filed will be granted only upon the showing
of good cause. See Federal Rules of Evidence,
Rule 606(b).

This rule is made applicable to criminal cases by Local Rule Criminal
24.2.
 MITCHELL V. UNITED STATES 11

606(b) of the Federal Rules of Evidence,3 which generally
prohibits jurors from testifying regarding their deliberations,
cannot preclude evidence regarding jurors’ racial or religious
bias. Mitchell also speculated that the jurors might have been
affected by publicity about the trial, or might have been
influenced by outside sources.

The district court denied Mitchell’s request. The court
ruled that Mitchell had not complied with the procedural
requirements of Local Rule 39.2, because the motion was
untimely and Mitchell had failed to file proposed
interrogatories to the jurors or submit an affidavit setting

3
Rule 606(b) of the Federal Rules of Evidence provides:

(b) During an Inquiry into the Validity of a Verdict or
Indictment.

(1) Prohibited Testimony or Other Evidence. During an
inquiry into the validity of a verdict or indictment, a
juror may not testify about any statement made or
incident that occurred during the jury’s deliberations;
the effect of anything on that juror’s or another juror’s
vote; or any juror’s mental processes concerning the
verdict or indictment. The court may not receive a
juror’s affidavit or evidence of a juror’s statement on
these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly
brought to the jury’s attention;

(B) an outside influence was improperly brought to bear
on any juror; or

(C) a mistake was made in entering the verdict on the
verdict form.
12 MITCHELL V. UNITED STATES

forth reasons for interrogatories. In any event, the court held
that Mitchell had failed to establish “good cause,” as required
by Local Rule 39.2, because there was no preliminary
showing of juror misconduct; rather Mitchell’s allegations of
juror misconduct were “based on wholesale speculation.”
According to the court, the prosecutor’s statement that
Mitchell “turned his back on his religious and cultural
heritage” did not raise a potential for juror bias because the
Ninth Circuit had determined on direct appeal that the
statement was not improper. Moreover, the court reasoned
that any testimony regarding the subjective effect of the
prosecutor’s statements on the jury’s deliberation would be
barred by Rule 606(b) of the Federal Rules of Evidence.
Further, Mitchell had provided no evidence that prejudicial
news articles about his case existed or that any juror saw such
articles. The district court concluded that in the absence of
any showing of juror misconduct or any other basis for good
cause, Mitchell was not entitled to interview jurors.

C

After the denial of his request under Local Rule 39.2,
Mitchell brought a federal habeas motion under 28 U.S.C.
§ 2255 to challenge his sentence on multiple grounds,
primarily focusing on ineffective assistance of counsel. His
eleventh claim (Claim K) alleged that the district court had
violated the Fifth, Sixth, and Eighth Amendments by denying
his request to interview the jurors. According to Mitchell,
denying his interview request deprived him of the opportunity
to ensure that his jury was impartial and that the verdict was
reliable. The district court rejected Claim K because it
alleged an “error in a postconviction proceeding, not at trial
or sentencing,” and therefore failed to state a cognizable
claim for relief under § 2255. See Franzen v. Brinkman,
 MITCHELL V. UNITED STATES 13

877 F.2d 26, 26 (9th Cir. 1989). The district court did not
grant a certificate of appealability for this claim. On appeal,
we denied a certificate of appealability with respect to all
uncertified claims and affirmed the district court’s denial of
Mitchell’s § 2255 motion. Mitchell II, 790 F.3d at 894 & n.7.

D

Two years after Mitchell II, the Supreme Court decided
Peña-Rodriguez, which held that, notwithstanding Rule
606(b), juror statements demonstrating racial animus could
be admissible as evidence. 137 S. Ct. at 869. Nearly a year
later, in March 2018, Mitchell filed a motion under Rule
60(b)(6) of the Federal Rules of Civil Procedure, seeking
relief from the district court’s judgment in light of Peña-
Rodriguez.4 Although Mitchell’s Rule 60(b)(6) motion
ostensibly sought to reopen his § 2255 proceeding, it actually
challenged the district court’s denial of his May 2009 request
to interview jurors. The district court5 denied the motion, and
Mitchell timely appealed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the denial of a Rule 60(b) motion for abuse of
discretion, Harvest v. Castro, 531 F.3d 737, 741 (9th Cir.

4
Rule 60(b)(6) provides:

(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding. On motion and just terms, the court may
relieve a party or its legal representative from a final
judgment, order, or proceeding for the following
reasons: . . . (6) any other reason that justifies relief.
5
Judge David Campbell was assigned to the case after Judge Murguia
was appointed to the Ninth Circuit.
14 MITCHELL V. UNITED STATES

2008), but we review questions of law underlying the district
court’s decision de novo, Hall v. Haws, 861 F.3d 977, 984
(9th Cir. 2017). We review de novo whether a § 2255 motion
is an unauthorized second or successive motion. See Jones v.
Ryan, 733 F.3d 825, 833 (9th Cir. 2013).

II

Before addressing the merits of Mitchell’s Rule 60(b)(6)
motion, we must first determine whether the district court had
jurisdiction to hear it. See 28 U.S.C. § 2255(h); Washington
v. United States, 653 F.3d 1057, 1062 (9th Cir. 2011). We
conclude that it did.

Under Rule 60(b), a court may “relieve a party or its legal
representative from a final judgment, order, or proceeding”
for specified reasons, including the catchall “any other reason
that justifies relief.” Fed. R. Civ. P. 60(b)(6). In Gonzalez v.
Crosby, the Court held that, like other Federal Rules of Civil
Procedure, Rule 60(b) applies in the habeas context “only to
the extent that it is not inconsistent with applicable federal
statutory provisions and rules.” 545 U.S. 524, 529 (2005)
(cleaned up). This means that Rule 60(b) does not apply to
the extent it is inconsistent with the habeas rules’ limitations
on second or successive applications. Id. at 529–30; see
28 U.S.C. §§ 2244(b), 2255(h).6

6
Although Gonzalez addressed only the extent to which Rule 60(b)
is inconsistent with § 2244 (the provision providing the second-or-
successive bar for habeas petitions filed by state prisoners under § 2254),
545 U.S. at 529 n.3, we held in United States v. Buenrostro that the
reasoning in Gonzalez applies equally to § 2255 motions filed by federal
prisoners. 638 F.3d 720, 722 (9th Cir. 2011). But see Williams v. United
States, 927 F.3d 427, 434–36 (6th Cir. 2019) (holding that § 2244(b)(1)’s
prohibition on claims in a second or successive petition that were not
 MITCHELL V. UNITED STATES 15

Under the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA), a district court has only limited authority
to hear a claim presented in a second or successive habeas
motion. The court must deny a second or successive motion
unless the court of appeals first certifies that the motion relies
on a new rule of constitutional law that is retroactively
applicable or presents new evidence that meets the criteria set
forth in § 2255(h). See Burton v. Stewart, 549 U.S. 147, 149
(2007); Gonzalez, 545 U.S. at 531–32.

According to the Supreme Court, these rules require
courts to examine Rule 60(b) motions carefully in order to
determine whether they raise “claims.” Gonzalez, 545 U.S.
at 530–31. If a Rule 60(b) motion raises a claim, it “is in
substance a successive habeas petition and should be treated
accordingly.” Id. at 531. In other words, a Rule 60(b) motion
presenting a claim cannot proceed without certification from
the court of appeals; otherwise, “Rule 60(b) would
impermissibly circumvent” the second or successive bar. Id.
at 531–32.

A Rule 60(b) motion advances a “claim” for purposes of
AEDPA when it contains an “asserted federal basis for relief
from a state court’s judgment of conviction.” Id. at 530. As
explained in Gonzalez, an argument is a “claim” if it
“substantively addresses federal grounds” for setting aside a
prisoner’s conviction. Id. at 533. This includes an argument
seeking to add a new ground for relief, or attacking the
federal court’s previous resolution of a claim on the merits.
Id. at 532. It also includes a request to present “‘newly
discovered evidence’ in support of a claim previously

raised in a prior habeas petition does not apply to motions made by federal
prisoners under § 2255).
16 MITCHELL V. UNITED STATES

denied,” or an argument “contend[ing] that a subsequent
change in substantive law is a ‘reason justifying relief.’” Id.
at 531 (internal citation omitted); accord Washington,
653 F.3d at 1063. An “attack based on the movant’s own
conduct, or his habeas counsel’s omission . . . in effect asks
for a second chance to have the merits determined favorably”
and amounts to a claim. Gonzalez, 545 U.S. at 532 n.5.

However, not all arguments in a Rule 60(b) motion
constitute claims. Gonzalez gave examples of challenges that
could be included in a Rule 60(b) motion without turning it
into a second or successive habeas motion. For instance, an
argument that a court’s procedural error precluded a prisoner
from obtaining a merits determination does not raise a habeas
“claim.” Id. at 532 n.4. Procedural errors include errors in
determining whether the prisoner had exhausted state
remedies, whether the prisoner had procedurally defaulted a
claim, or whether a claim was time-barred. See id. Nor does
a motion asserting some defect in the integrity of a habeas
proceeding, such as a claim of fraud on the federal habeas
court, advance a “claim.” Id. at 532 n.5.

The government argues that even if a Rule 60(b) motion
does not present a claim on its face, it should be treated as a
disguised second or successive § 2255 motion if its end goal
is to discover and assert a claim. The government relies on
a Fifth Circuit case in which a federal prisoner brought a
Rule 60(b)(6) motion claiming that the district court had
erroneously denied his request to interview jurors regarding
potential racial bias. In re Robinson, 917 F.3d 856, 861–66
(5th Cir. 2019), cert. denied sub nom., Robinson v. United
States, No. 19-5535, 2020 WL 872217 (U.S. Feb. 24, 2020).
The prisoner argued that his motion was not a disguised
second or successive § 2255 motion because he was
 MITCHELL V. UNITED STATES 17

challenging a procedural “defect in the integrity of the habeas
proceedings.” Id. at 864. The Fifth Circuit rejected this
characterization of the § 2255 motion because the district
court had not made any procedural error in denying habeas
discovery. Id. at 865. Because the § 2255 motion was not
challenging a procedural defect, the Fifth Circuit concluded
that the prisoner’s request to interview jurors regarding racial
bias had to be viewed as “attempting to advance a new habeas
claim related to jury impartiality” and constituted a second or
successive § 2255 motion. Id.

We decline to follow In re Robinson. The Fifth Circuit
read Gonzalez as holding that a prisoner could use a Rule
60(b)(6) motion only for a single category of challenges
(challenges to procedural errors); all other challenges were
forbidden merits-based claims. But, rather than narrowing
the use of Rule 60(b)(6) motions to a single type of challenge,
Gonzalez did the opposite: it excised a single category of
challenges from the arguments that could be raised under
Rule 60(b)(6), holding that a prisoner could not bring a
substantive merits-based claim as a Rule 60(b)(6) motion.
Gonzalez did not preclude a prisoner from bringing any other
sort of argument under Rule 60(b)(6).7

Because the Fifth Circuit bifurcated Rule 60(b)(6)
motions into permitted challenges to procedural errors and
merits-based claims, it failed to distinguish between a request

7
Perhaps realizing the gap in its analysis, In re Robinson adds that
“[e]ven if we were to find that Robinson’s impartial-jury claim did not
constitute a second or successive habeas petition, we would undoubtedly
conclude that he fails to show that, as a result of the denial of his
discovery request, extraordinary circumstances exist to justify the
reopening of the final judgment under Rule 60(b)(6).” 917 F.3d at 866
n.18 (cleaned up) (quoting Gonzalez, 545 U.S. at 535).
18 MITCHELL V. UNITED STATES

for evidence to develop a possible new claim and an effort to
bolster a prior claim, concluding that both fell within the
category of disallowed substantive challenges. Again, we
disagree. Consistent with Gonzalez, we have held that a
request for “newly discovered evidence in support of a claim
previously denied” qualifies as a “claim.” Wood v. Ryan,
759 F.3d 1117, 1120 (9th Cir. 2014) (quoting Gonzalez,
545 U.S. at 531) (holding that a state prisoner’s Rule 60(b)(6)
motion seeking relief from the district court’s denial of his
motion for evidentiary development in support of a previously
denied ineffective assistance of counsel claim was a second
or successive petition); see also Washington, 653 F.3d
at 1065 (holding that a motion seeking “a fresh opportunity
to air the arguments that failed at . . . trial” was a second or
successive § 2255 motion) (emphasis added).

But Gonzalez did not hold that a prisoner’s request to
develop evidence for a potential new claim also qualifies as
a “claim.” Such a request does not meet Gonzalez’s
definition of a substantive merits-based claim because it does
not assert a federal basis for relief from the prisoner’s
conviction or sentence. Here, for instance, Mitchell’s Rule
60(b)(6) motion argues that the district court erred in denying
Mitchell’s request to interview the jurors who recommended
the death penalty. Mitchell does not claim that the correction
of this alleged error would entitle him to relief or affect the
validity of his conviction or sentence. Nor does Mitchell seek
to present newly discovered evidence to support a prior claim
or argue that a change in law justifies relief from his
conviction or sentence. See Gonzalez, 545 U.S. at 531. At
most, a favorable ruling would give Mitchell the opportunity
to attempt to develop a claim that the jurors were biased.
Because Mitchell’s motion does not present a substantive
claim on the merits, “allowing the motion to proceed as
 MITCHELL V. UNITED STATES 19

denominated creates no inconsistency with the habeas statute
or rules.” Id. at 533. Therefore, we conclude that Mitchell’s
motion is not a disguised second or successive § 2255 habeas
motion, and the district court had jurisdiction to decide his
Rule 60(b)(6) motion.

III

We therefore turn to whether Mitchell has established
“‘extraordinary circumstances’ justifying the reopening of a
final judgment.” Id. at 535 (quoting Ackermann v. United
States, 340 U.S. 193, 199 (1950)). In considering whether
there is an “extraordinary” circumstance for purposes of a
Rule 60(b)(6) motion, we consider a number of factors,
including the “degree of connection between the
extraordinary circumstance and the decision for which
reconsideration is sought.” Hall, 861 F.3d at 987 (citing
Phelps v. Alameida, 569 F.3d 1120, 1135–40 (9th Cir. 2009)).
Said otherwise, we consider whether the alleged
extraordinary circumstance, such as a change in the law, was
material to the prisoner’s claim.

A

“[A] change in intervening law” can constitute an
extraordinary circumstance. Id. at 987–88. Gonzalez made
clear, however, that not every change in intervening law
“provides cause for reopening cases long since final.”
545 U.S. at 536; see also Ritter v. Smith, 811 F.2d 1398, 1401
(11th Cir. 1987) (“[S]omething more than a ‘mere’ change in
the law is necessary to provide the grounds for Rule 60(b)(6)
relief.”). For instance, Gonzalez held that a Supreme Court
decision that changed an interpretation of controlling law was
not an “extraordinary circumstance” even though it would
20 MITCHELL V. UNITED STATES

have saved a prisoner’s habeas petition from being time-
barred. 545 U.S. at 537–38. According to the Court,
development of the Supreme Court’s jurisprudence in a
particular area does not necessarily justify “reopening cases
long since final”; indeed, it is “hardly extraordinary” that the
Supreme Court arrives at a different interpretation of the law
after a prisoner’s case is no longer pending. Id. at 536.
Moreover, where an argument is available and raised by other
litigants (and even litigated all the way to the Supreme
Court), but the prisoner did not diligently pursue the
argument, the change in law is “all the less extraordinary.”
Id. at 537. Thus, a mere development in jurisprudence, as
opposed to an unexpected change, does not constitute an
extraordinary circumstance for purposes of Rule 60(b)(6).

B

Mitchell argues that Peña-Rodriguez was an intervening
change in law that constituted an extraordinary circumstance
requiring the district court to give Mitchell relief from the
prior order denying his request to interview jurors. In
addressing this argument, we consider the legal history
leading up to the decision in Peña-Rodriguez.

We have long imposed restrictions on lawyers seeking
access to jurors. These rules derive their authority from the
common law, where “judges placed the veil of secrecy about
jury deliberations.” N. Pac. Ry. Co. v. Mely, 219 F.2d 199,
201 (9th Cir. 1954). Rules restricting lawyers’ access to
jurors “(1) encourage freedom of discussion in the jury room;
(2) reduce the number of meritless post-trial motions;
(3) increase the finality of verdicts; and (4) further Federal
Rule of Evidence 606(b) by protecting jurors from
harassment and the jury system from post-verdict scrutiny.”
 MITCHELL V. UNITED STATES 21

Cuevas v. United States, 317 F.3d 751, 753 (7th Cir. 2003).
Indeed, “[i]t is incumbent upon the courts to protect jurors
from the annoyance and harassment of such conduct,” Bryson
v. United States, 238 F.2d 657, 665 (9th Cir. 1956), and “it is
improper and unethical for lawyers to interview jurors to
discover what was the course of deliberation of a trial jury,”
People of Territory of Guam v. Marquez, 963 F.2d 1311,
1315 (9th Cir. 1992) (quoting Smith v. Cupp, 457 F.2d 1098,
1100 (9th Cir. 1972)). Therefore, in cases where there has
been no showing of juror misconduct, we have held that a
district court “d[oes] not abuse [its] discretion in refusing to
allow postverdict interrogation of jurors.” United States v.
Eldred, 588 F.2d 746, 752 (9th Cir. 1978) (upholding an
earlier version of the District of Arizona local rule restricting
access to jurors in the absence of “some showing of sufficient
reason”). We have also held that a district court’s “denial of
a motion to interrogate jurors” does not raise a constitutional
problem where “there has been no specific claim of jury
misconduct.” Smith, 457 F.2d at 1100.

The judicial authority to exercise discretion regarding
whether to grant lawyers permission to conduct jury
interviews also undergirds Rule 606(b) of the Federal Rules
of Evidence, which also stems from long-established common
law rules. Rule 606(b) generally provides that a juror may
not testify about statements and incidents that occurred
during the jury’s deliberations. Specifically, “[d]uring an
inquiry into the validity of a verdict or indictment, a juror
may not testify about any statement made or incident that
occurred during the jury’s deliberations; the effect of
anything on that juror’s or another juror’s vote; or any juror’s
mental processes concerning the verdict or indictment.” Fed.
R. Evid. 606(b)(1). Further, a court “may not receive a
juror’s affidavit or evidence of a juror’s statement on these
22 MITCHELL V. UNITED STATES

matters.” Fed. R. Evid. 606(b)(1).8 This “no-impeachment
rule” “promotes full and vigorous discussion by providing
jurors with considerable assurance that after being discharged
they will not be summoned to recount their deliberations, and
they will not otherwise be harassed or annoyed by litigants
seeking to challenge the verdict,” and “gives stability and
finality to verdicts.” Peña-Rodriguez, 137 S. Ct. at 865.

Prior to Peña-Rodriguez, the Supreme Court had declined
to recognize any exceptions (other than those in Rule 606(b))
to the no-impeachment rule. In Tanner v. United States, for
instance, the Court “rejected a Sixth Amendment exception
for evidence that some jurors were under the influence of
drugs and alcohol during the trial,” based on the “existing,
significant safeguards for a defendant’s right to an impartial
and competent jury,” such as voir dire, the opportunity to
observe jurors during trial, and the opportunity for jurors to
report misconduct before a verdict is rendered. Peña-
Rodriguez, 137 S. Ct. at 866 (citing Tanner v. United States,
483 U.S. 107, 125–27 (1987)); see also Warger v. Shauers,
574 U.S. 40, 47–48 (2014).

Notwithstanding the Supreme Court’s historical hesitance
to interfere with the operation of Rule 606(b), we have long
explained that the protections provided by this evidence rule
are not absolute. See Henley, 238 F.3d at 1120. Noting the
longstanding “conflict between protecting a defendant’s right
to a fair trial, free of racial bias, and protecting the secrecy

8
Rule 606(b) contain several exceptions, allowing a juror to testify
about whether “(A) extraneous prejudicial information was improperly
brought to the jury’s attention; (B) an outside influence was improperly
brought to bear on any juror; or (C) a mistake was made in entering the
verdict on the verdict form.” Fed. R. Evid. 606(b)(2).
 MITCHELL V. UNITED STATES 23

and sanctity of jury deliberations,” we suggested that there
may be an exception to Rule 606(b) in cases where there was
evidence of juror racial bias. Id. at 1119. Although we did
not decide “whether or to what extent the rule prohibits juror
testimony concerning racist statements made during
deliberations,” id. at 1121, we agreed that “a powerful case
can be made that Rule 606(b) is wholly inapplicable to racial
bias,” id. at 1120.

Vindicating our views in Henley, Peña-Rodriguez
subsequently recognized an exception to Rule 606(b) to allow
jurors to testify about statements showing racial bias. In
Peña-Rodriguez, a criminal defendant was convicted of
unlawful sexual contact and harassment for sexually
assaulting two teenage sisters. 137 S. Ct. at 861. After the
jury was discharged, two jurors told the defendant’s counsel
that another juror had expressed anti-Hispanic bias against the
defendant and the defendant’s alibi witness during
deliberations. Id. According to the jurors’ affidavits, the
biased juror stated he thought the defendant was guilty
because “Mexican men ha[ve] a bravado that caused them to
believe they could do whatever they wanted with women,”
and made similar statements evincing racial prejudice. Id.
at 862. The trial court denied the prisoner’s motion for a new
trial, finding the affidavits would be inadmissible under Rule
606(b).9 Id.

9
Although the trial court decided the admissibility of the affidavits
under Rule 606(b) of the Colorado Rules of Evidence, the Colorado rule
is substantively identical to its federal counterpart, and the Supreme Court
on appeal analyzed Rule 606(b) of the Federal Rules of Evidence. Peña-
Rodriguez, 137 S. Ct. at 864–65.
24 MITCHELL V. UNITED STATES

The Supreme Court reversed, holding that the Sixth
Amendment guarantee of an impartial jury required the
admission of evidence of juror racial bias. Id. at 870. The
Court held that racial bias is a “familiar and recurring evil
that, if left unaddressed, would risk systemic injury to the
administration of justice.” Id. at 868. According to the
Court, “racial bias implicates unique historical, constitutional,
and institutional concerns.” Id. Further, “[a] constitutional
rule that racial bias in the justice system must be
addressed—including, in some instances, after the verdict has
been entered—is necessary to prevent a systemic loss of
confidence in jury verdicts, a confidence that is a central
premise of the Sixth Amendment trial right.” Id. at 869.

While acknowledging the safeguards that protect the right
to an impartial jury (and urging trial courts to use such
“standard and existing processes designed to prevent racial
bias in jury deliberations,” id. at 871), the Court noted that
“their operation may be compromised, or they may prove
insufficient” in addressing juror prejudice, id. at 868. For
instance, “[t]he stigma that attends racial bias may make it
difficult for a juror to report inappropriate statements during
the course of juror deliberations.” Id. at 869.

In light of these concerns, the Court held that “where a
juror makes a clear statement that indicates he or she relied
on racial stereotypes or animus to convict a criminal
defendant,” then “the Sixth Amendment requires that the no-
impeachment rule give way in order to permit the trial court
to consider the evidence of the juror’s statement and any
resulting denial of the jury trial guarantee.” Id. The Court
did not set down a rule for determining“[w]hether that
threshold showing has been satisfied” but rather held that
such a decision “is a matter committed to the substantial
 MITCHELL V. UNITED STATES 25

discretion of the trial court in light of all the circumstances,
including the content and timing of the alleged statements and
the reliability of the proffered evidence.” Id. The Court
noted that “[n]ot every offhand comment indicating racial
bias or hostility will justify setting aside the no-impeachment
bar to allow further judicial inquiry.” Instead, “there must be
a showing that one or more jurors made statements exhibiting
overt racial bias that cast serious doubt on the fairness and
impartiality of the jury’s deliberations and resulting verdict”
and “the statement must tend to show that racial animus was
a significant motivating factor in the juror’s vote to convict.”
Id.

Despite establishing this exception to Rule 606(b), Peña-
Rodriguez acknowledged and confirmed the longstanding
rules giving trial courts discretion over lawyer efforts to
investigate and interview jurors. The Court stated that “[t]he
practical mechanics of acquiring and presenting such
evidence will no doubt be shaped and guided by state rules of
professional ethics and local court rules, both of which often
limit counsel’s post-trial contact with jurors.” Id. Limits on
contact with jurors “seek to provide jurors some protection
when they return to their daily affairs after the verdict has
been entered” and can be found even in jurisdictions “that
recognize a racial-bias exception” to the no-impeachment
rule. Id. at 869–70. The Court explained that jurors “may
come forward of their own accord” to report racial bias
notwithstanding rules prohibiting lawyers from initiating such
contact, a practice that “is common in cases involving juror
allegations of racial bias.” Id. (collecting cases).
26 MITCHELL V. UNITED STATES

C

Mitchell’s theory is that Peña-Rodriguez’s recognition of
the threat posed by racial bias to the judicial system worked
a sea change in the law applicable to his case. Although
Peña-Rodriguez’s immediate effect was to make an exception
to the rule precluding admissibility of evidence of racial bias
in jury deliberations under Rule 606(b), Mitchell argues that
this exception would have no practical effect if defendants
could not acquire evidence of juror bias. As a result, Mitchell
reasons, Peña-Rodriguez made an equally significant change
to the precedents allowing district courts to deny lawyers
leave to interrogate jurors and to rules such as Local Rule
39.2, which require lawyers to show good cause before they
can interview jurors. These rules must now be set aside,
according to Mitchell, because they impose an unreasonable
burden on a criminal defendant’s ability to ensure that no
racial bias impacted the jury’s verdict. Therefore, Mitchell
claims, Peña-Rodriguez made a fundamental change in the
law relevant to his request to interview jurors, and as such the
district court was obliged to grant his Rule 60(b)(6) motion.

We disagree. Although Peña-Rodriguez established a
new exception to Rule 606(b), this change in law left
untouched the law governing investigating and interviewing
jurors. See Hall, 861 F.3d at 987 (listing the “degree of
connection between the extraordinary circumstance and the
decision for which reconsideration is sought” as a factor for
a court to consider when ruling on a Rule 60(b) motion).
Indeed, Peña-Rodriguez acknowledged that juror-access rules
would impose limitations on the use of the new racial-bias
exception to Rule 606(b) because “[t]he practical mechanics
of acquiring and presenting such evidence will no doubt be
shaped and guided by state rules of professional ethics and
 MITCHELL V. UNITED STATES 27

local court rules, both of which often limit counsel’s post-trial
contact with jurors.” 137 S. Ct. at 869; see also id. at 870
(referencing various rules setting limits on juror contacts).
Rather than override the limitations on lawyers’ access to
jurors, Peña-Rodriguez emphasizes the important purpose of
such limitations in providing “jurors some protection when
they return to their daily affairs after the verdict has been
entered.” Id. at 869.

Because Peña-Rodriguez does not override local court
rules or compel access to jurors, it is not “clearly
irreconcilable” with our precedent, Miller v. Gammie,
335 F.3d 889, 893 (2003) (en banc), and therefore did not
make any change in the law regarding lawyer access to jurors,
let alone one so significant that it would constitute
“extraordinary circumstances” for purposes of Rule 60(b).
Peña-Rodriguez permits district courts to continue to exercise
their discretion in granting motions to interview jurors, see
Smith, 457 F.2d at 1100, and to implement and adhere to rules
such as Local Rule 39.2 requiring a showing of good cause,
see Eldred, 588 F.2d at 752.

All other circuits that have considered this issue have
reached the same conclusion. The Second Circuit rejected the
argument that Peña-Rodriguez required a district court to
grant a request for juror interviews, and instead upheld a
district court’s denial of a request to interview jurors where
there was no “clear, strong, substantial and incontrovertible
evidence” that an impropriety occurred. United States v.
Baker, 899 F.3d 123, 134 (2d Cir. 2018) (citation omitted).
As the Second Circuit explained, Peña-Rodriguez established
“a narrow exception to the no-impeachment rule,” but “d[id]
not address the separate question of what showing must be
made before counsel is permitted to interview jurors post-
28 MITCHELL V. UNITED STATES

verdict to inquire into potential misconduct.” Id. at 133–34.
Rather “as to this question, the decision simply reaffirms the
importance of limits on counsel’s post-trial contact with
jurors.” Id. at 134; see also United States v. Birchette,
908 F.3d 50, 55–60 (4th Cir. 2018) (affirming the denial of a
request to interview jurors, even when presented with some
evidence of potential racial bias, because the evidence did not
satisfy the local rule’s “good cause” requirement); cf. United
States v. Robinson, 872 F.3d 760, 770 (6th Cir. 2017)
(affirming the denial of a motion for a new trial based on
evidence of a juror’s racial bias obtained in violation of local
rules because of Peña-Rodriguez’s “reaffirmation of the
validity of . . . local rules” regulating access to jurors).

Given this conclusion, Mitchell has failed to show an
intervening change in law that constituted extraordinary
circumstances.

D

We reject Mitchell’s other arguments. First, Mitchell
points to the district court’s statement that procedural
safeguards implemented during trial, such as voir dire and the
in-court observation of jurors, helped protect Mitchell’s
conviction from the influence of racial bias, and weighed
against finding “extraordinary circumstances.” Mitchell
argues that the district court erred in making this statement,
because Peña-Rodriguez held that procedural safeguards,
such as those presented in Tanner and its progeny, were
insufficient to protect the right to a fair trial free from racial
bias. This argument fails. Although Peña-Rodriguez
indicated that procedural safeguards might be insufficient by
themselves to protect against racial bias, 137 S. Ct. at 868–69,
it also stated that they could effectively limit the impact of
 MITCHELL V. UNITED STATES 29

racial bias, id. at 871. Here, the district court took significant
steps to prevent racial bias. Jurors were asked in voir dire
about their attitudes towards Native Americans, were
instructed not to consider race, and were required to sign a
certification attesting that they did not consider race. In
addition, they were given the opportunity to speak with the
lawyers as they left the courtroom. Peña-Rodriguez noted
that these and similar procedural safeguards “deserve
mention” for their role in helping to avoid racial bias in
deliberations. Id.

Second, Mitchell argues that the district court should have
revisited the question whether Mitchell lacked “good cause”
for purposes of Local Rule 39.2 in light of Peña-Rodriguez.
This argument also fails. Peña-Rodriguez did not change our
controlling precedent on the issue of jury access. Moreover,
the district court did not err in denying Mitchell’s request for
lack of good cause, given that Mitchell did not offer any
“specific claim of jury misconduct.” Smith, 457 F.2d at 1100;
see Eldred, 588 F.2d at 752. We previously concluded in
Mitchell’s case that the racial composition of the jury pool
and petit jury, the government’s use of peremptory
challenges, and comments made by the prosecutor in closing
argument did not constitute errors at trial, see Mitchell I,
502 F.3d at 946–51, 957–58, 970–71, and thus they do not
support Mitchell’s claim that he had good cause to interview
jurors. We also decline to adopt a per se rule that good cause
is always satisfied in capital cases.

Because Mitchell presents no extraordinary circumstances
or district court errors that would justify reopening his case,
we conclude that the district court did not abuse its discretion
by denying Mitchell’s Rule 60(b) motion.
30 MITCHELL V. UNITED STATES

E

Our decision today does not mean that defendants will
lack opportunities to learn of racial bias occurring in their
cases. Although Mitchell asserts that local rules that require
a preliminary showing of juror bias before allowing parties to
interview jurors operate as an “all-out ban” on the ability of
criminal defendants to learn of any racial bias that impacted
the jury’s deliberations, Peña-Rodriguez explained that the
“pattern” of jurors approaching the lawyers in the case to
report racial bias expressed during deliberation “is common
in cases involving juror allegations of racial bias.” 137 S. Ct.
at 870 (collecting cases). It was pursuant to this pattern that
the criminal defendants in Peña-Rodriguez, id. at 861, and
Henley, 238 F.3d at 1113, obtained information of jurors’
racial bias, see also Baker, 899 F.3d at 128–29; Birchette,
908 F.3d at 55. There were ample opportunities for jurors in
Mitchell’s case to report any racial bias, including the
opportunity that the district judge gave the jurors to “discuss
the case” with the lawyers as the jurors exited the courtroom.

Nor does our decision mean that local rules will never
give way to the “unique historical, constitutional, and
institutional concerns” of racism that motivated Peña-
Rodriguez. 137 S. Ct. at 868. If a criminal defendant makes
a preliminary showing of juror bias, a district court may set
aside a procedural hurdle limiting access to jurors, just as the
Supreme Court made an exception to Rule 606(b) of the
Federal Rules of Evidence in the face of evidence of racial
bias. Indeed, the district court did not rely on Mitchell’s
failure to comply with the procedural requirements of Local
Rule 39.2 in denying Mitchell’s request to interview jurors.
We save questions regarding the extent to which procedural
rules must give way to the right to an impartial trial for
 MITCHELL V. UNITED STATES 31

another day, however, because Mitchell has presented no
evidence of racial bias here.

AFFIRMED.

CHRISTEN, Circuit Judge, concurring:

I join the majority’s considered opinion in full, but write
separately because the lengthy history of this case may make
it easy to lose track of the fact that Mitchell did not receive
the death penalty for his murder convictions. Mitchell was
sentenced to death because, in the course of committing their
atrocious crimes, he and his accomplice also committed a
carjacking. In my view, it is worth pausing to consider why
Mitchell faces the prospect of being the first person to be
executed by the federal government for an intra-Indian crime,
committed in Indian country, by virtue of a conviction for
carjacking resulting in death.

For intra-Indian offenses committed in Indian country, the
Major Crimes Act allows federal prosecution of serious
crimes such as murder and manslaughter. 18 U.S.C.
§ 1153(a). The Major Crimes Act was enacted in 1885, in
direct response to the Supreme Court’s decision in Ex parte
Crow Dog, 109 U.S. 556 (1883), which held that the federal
government lacked jurisdiction to try an Indian for the murder
of another Indian in Indian country. Keeble v. United States,
412 U.S. 205, 209–10 (1973). More than one hundred years
later, Congress eliminated the death penalty for federal
prosecutions of Indian defendants under the Major Crimes
Act, subject to being reinstated at the election of a tribe’s
governing body—the so-called “tribal option.” 18 U.S.C.
32 MITCHELL V. UNITED STATES

§ 3598; United States v. Gallaher, 624 F.3d 934, 936 (9th Cir.
2010).1 The tribal option was an important recognition of
tribal sovereignty. See Gallaher, 624 F.3d at 938–39. In
short, the tribal option “place[d] Native American tribes on an
equal footing with states: they may decide whether or not . . .
first degree murder committed within their jurisdiction is
punishable by death, even [when] first degree murders . . . are
prosecuted in federal court.” Id. at 939. The Navajo Nation,
like many other tribes, declined to opt in to the federal death
penalty.

Because of this history, when the United States
prosecuted Mitchell for the murders of Alyce Slim and her
nine-year-old granddaughter, it could not seek the death
penalty for those charges. The United States circumvented
the tribal option by also charging Mitchell with carjacking
resulting in death and seeking the death penalty for that
charge. The death penalty was not authorized for carjacking
until 1994.2 Because carjacking is a “crime of nationwide
applicability,”3 rather than a Major Crimes Act offense, the

1
The tribal option also extends to crimes prosecuted under the Indian
Country Crimes Act, 18 U.S.C. § 1152. But because the Indian Country
Crimes Act does not extend to intra-Indian offenses committed in Indian
country, United States v. Begay, 42 F.3d 486, 498 (9th Cir. 1994), I limit
my discussion to the Major Crimes Act.
2
Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, § 60003(a)(14), 108 Stat. 1796, 1968 (1994).
3
Crimes of nationwide applicability are laws that “make actions
criminal wherever committed.” Begay, 42 F.3d at 498. By contrast,
enclave laws—such as those prosecuted under the Major Crimes
Act—“are laws in which the situs of the offense is an element of the
crime—places such as military bases, national parks, federal buildings,
 MITCHELL V. UNITED STATES 33

tribal option is inapplicable to it. United States v. Mitchell,
502 F.3d 931, 948 (9th Cir. 2007).

The decision to seek the death penalty in Mitchell’s case
was made against the express wishes of the Navajo Nation,
several members of the victims’ family, and the United States
Attorney for the District of Arizona. As the Attorney General
of the Navajo Nation Department of Justice explained,
although “the details of [Mitchell’s] case[] were shocking,”
the Navajo Nation did not support the death penalty for
Mitchell because Navajo “culture and religion teaches us to
value life and instruct against the taking of human life for
vengeance.” To be sure, the evidence of Mitchell’s guilt was
overwhelming, as the majority explains, but those who
opposed the death penalty in his case did not doubt the
horrific nature of Mitchell’s crimes. The imposition of the
death penalty in this case is a betrayal of a promise made to
the Navajo Nation, and it demonstrates a deep disrespect for
tribal sovereignty. People can disagree about whether the
death penalty should ever be imposed, but our history shows
that the United States gave tribes the option to decide for
themselves.

Our court has already decided that the United States was
legally permitted to seek death pursuant to the carjacking
statute, Mitchell, 502 F.3d at 946–49, and I do not revisit that
conclusion. I write to underscore only that the United States
made an express commitment to tribal sovereignty when it
enacted the tribal option, and by seeking the death penalty in
this case, the United States walked away from that

and the like.” United States v. Anderson, 391 F.3d 1083, 1086 (9th Cir.
2004).
34 MITCHELL V. UNITED STATES

commitment. For all of these reasons, this case warrants
careful consideration.

HURWITZ, Circuit Judge, concurring:

Judge Ikuta’s opinion ably and comprehensively
addresses the issue raised in this appeal, and I join it in full.

I write separately to stress a point aptly made earlier in
the long history of this case by Judge Reinhardt. See Mitchell
v. United States, 790 F.3d 881, 894–97 (9th Cir. 2015)
(Reinhardt, J., dissenting in part). The heinous crimes that
gave rise to this case occurred entirely within the territory of
the sovereign Navajo Nation. The defendant is a Navajo, as
were the victims. The Navajo Nation has, from the outset of
this case, opposed imposition of the death penalty on the
defendant, as have members of the victims’ family.

The Attorney General nonetheless decided to override the
decision of the United States Attorney for the District of
Arizona not to seek the death penalty. Because this case
involved a carjacking, I do not question the government’s
legal right to seek the death penalty; indeed, we have already
held that it had the statutory right to do so. See United States
v. Mitchell, 502 F.3d 931, 946–49 (9th Cir. 2007). But that
the government had the right to make this decision does not
necessarily make it right, and I respectfully suggest that the
current Executive should take a fresh look at the wisdom of
imposing the death penalty. When the sovereign nation upon
whose territory the crime took place opposes capital
punishment of a tribal member whose victims were also tribal
members because it conflicts with that nation’s “culture and
 MITCHELL V. UNITED STATES 35

religion,” a proper respect for tribal sovereignty requires that
the federal government not only pause before seeking that
sanction, but pause again before imposing it. That is
particularly true when imposition of the death penalty would
contravene the express wishes of several members of the
victims’ family.

The decision to pursue—and to continue to pursue—the
death penalty in this case spans several administrations. The
current Executive, however, has the unfettered ability to make
the final decision. See U.S. Const. art. II, § 2, cl. 1. Although
the judiciary today has done its job, I hope that the Executive
will carefully consider whether the death penalty is
appropriate in this unusual case.