                                                                                 FILED
                                FOR PUBLICATION
                                                                                  AUG 23 2020
                     UNITED STATES COURT OF APPEALS                           MOLLY C. DWYER, CLERK
                                                                                U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


LEZMOND C. MITCHELL,                               No.    20-99010

              Petitioner-Appellant,                D.C. Nos.
                                                   3:20-cv-08217-DGC-ESW
 v.                                                3:01-cr-01062-DGC-1

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

                             Submitted August 23, 2020*


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

                                      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



      *
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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 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



       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.
                                           2
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 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




      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. § 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
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).

      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,


      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.
                                            4
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.


                                           5
      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

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




      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
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




      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.
                                          7
