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                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

LEZMOND CHARLES MITCHELL,              )
                                       )
      Plaintiff                        )
                                       )
v.                                     )
                                       )                 Case No. 1:20-cv-02331-RCL
WILLIAM P. BARR, et al.,               )
                                       )
      Defendants.                      )
_______________________________________)

                                     MEMORANDUM OPINION

       On August 25, 2020, plaintiff Lezmond Charles Mitchell filed an application with this

Court for a Temporary Restraining Order and Preliminary Injunction against Defendants William

P. Barr, et al. (“Defendants”) seeking to stay his execution set for August 26, 2020. ECF No. 3.

For the reasons set forth below, the Court will deny Mr. Mitchell’s request.

                                        BACKGROUND

       In 2001, Mr. Mitchell was hitchhiking with an acquaintance. United States v. Mitchell

(Mitchell I), 502 F.3d 931, 942 (9th Cir. 2007). When Alyce Slim, a sixty-three-year-old woman

driving with her nine-year-old granddaughter encountered the two men, Ms. Slim picked them

up. Id. at 943. Once Ms. Slim stopped to let the men out, they stabbed her thirty-three times. Id.

They then put her body in the backseat next to her granddaughter, who was still alive. Id. After

driving more than thirty miles into the mountains, they ordered the granddaughter to get out of

the car. Id. They slit her throat twice and bludgeoned her head until she died. Id. Mr. Mitchell

and his accomplice then dismembered Ms. Slim and her granddaughter with an axe and buried

their body parts in the woods. Id.




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       When DNA evidence led criminal investigators to Mr. Mitchell, he admitted that he was

present when “things happened” to Ms. Slim and her granddaughter. 502 F.3d at 944. He also

agreed to help the investigators find the bodies. Id.

       A federal jury found Mr. Mitchell guilty of murder, felony murder, robbery, carjacking

resulting in death, and kidnapping and he was sentenced to death. 502 F.3d at 946. On appeal,

the Ninth Circuit affirmed his conviction and sentence. Id. at 942. And it later affirmed the denial

of his collateral attack. Mitchell v. United States (Mitchell II), 790 F.3d 881, 883 (9th Cir. 2015).

       At the time Mr. Mitchell was sentenced, the Government was not carrying out executions

for federal prisoners sentenced to death. But in late July 2019, for the first time in over fifteen

years, the Department of Justice (“DOJ”) announced its plans to execute five federal inmates.

See Press Release, Dep’t of Justice, Federal Government to Resume Capital Punishment After

Nearly Two Decade Lapse (July 25, 2019), https://www.justice.gov/opa/pr/federal-government-

resume-capital-punishment -after-nearly-two-decade-lapse.

       Mr. Mitchell was one of those inmates. Id. On July 25, 2019, the Warden for the United

States Penitentiary at Terre Haute—where Mr. Mitchell is incarcerated—notified Mr. Mitchell

that his execution had been scheduled for December 11, 2019. ECF No. 1 at 6. Shortly thereafter,

Mr. Mitchell timely filed a formal petition for commutation of his death sentence with the Office

of the Pardon Attorney (“OPA”). ECF No. 3-5. In his petition, Mr. Mitchell argues that as a

Navajo man, his execution would be an affront to the sovereignty of the Navajo Nation. Id. He

also claims that his sentence is disproportionate to his co-defendant’s and that he should be

spared because he has accepted responsibility for his actions. Id. The OPA granted Mr.

Mitchell’s request for a hearing at which he could give a presentation in support of his clemency




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petition and scheduled the hearing for October 22, 2019. ECF No. 1 at 6-7; see 28 C.F.R.

§ 1.10(c).

       In the meantime, on October 4, 2019, the Ninth Circuit stayed Mr. Mitchell’s execution

pending the resolution of his appeal before it. ECF No. 1 at 7. On April 30, 2020, the Ninth

Circuit rejected Mr. Mitchell’s request for relief under Federal Rule of Civil Procedure 60(b)(6).

Mitchell v. United States (Mitchell III), 958 F.3d 775, 779 (9th Cir. 2020). Mr. Mitchell’s

petition for rehearing or rehearing en banc was denied. ECF No. 1 at 7. So too was his motion to

stay the mandate to allow him to petition to the United States Supreme Court. Id. On July 20,

2020, Mr. Mitchell petitioned for rehearing or rehearing en banc of the denial of his motion to

stay the mandate. Id. That request was eventually denied as well. Id. at 9.

       On July 29, 2020, Mr. Mitchell received a notice informing him that his execution had

been rescheduled for August 26, 2020. ECF No. 1 at 8; see 28 C.F.R. § 26.4(a). The OPA held a

hearing on Mr. Mitchell’s clemency petition on August 11, 2020. Id. The OPA reviewed all the

materials submitted and, at some point after the hearing, made its recommendation to the

President. ECF No. 7-1 at 3; see 28 C.F.R. § 1.6(c). As of today, the President has not yet

decided whether to grant Mr. Mitchell clemency. ECF No. 1 at 10.

       The day before his execution was scheduled to take place, Mr. Mitchell simultaneously

filed a Complaint and Motion for a Temporary Restraining Order and Preliminary Injunction

with this Court. ECF Nos. 1, 1-11. In his Motion, he seeks to enjoin the Department of Justice,

the Federal Bureau of Prisons, the Office of the Pardon Attorney, and a handful of officials from

each agency, from carrying out his execution on August 26, 2020 so that the President can decide

whether to grant him clemency. ECF No. 3 at 1-2. The Government responded. ECF No. 7.




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                                         LEGAL STANDARD

          Injunctive relief is an “extraordinary remedy.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008). The movant bears the burden of demonstrating that: (1) it has a substantial

likelihood of succeeding on the merits; (2) it will suffer irreparable harm if the injunction is not

granted; (3) other interested parties will not suffer substantial harm if the injunction is granted;

and (4) the public interest would be furthered by the injunction. Chaplaincy of Full Gospel

Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). The Court considers the same factors

in deciding whether to issue a TRO as it does when deciding whether to issue a preliminary

injunction. Baker DC, LLC v. National Labor Relations Board, 102 F. Supp. 3d 194, 198-99

(D.D.C. 2015).

                                             DISCUSSION

          Mr. Mitchell raises three related constitutional claims. First, he argues that by scheduling

his execution with only 28 days’ notice, Defendants have hindered the President’s ability to

review Mr. Mitchell’s clemency petition and thus has deprived him of due process. Second, Mr.

Mitchell claims that by stripping him of his most basic procedural safeguards, Defendants have

violated his Eighth Amendment protection against the arbitrary infliction of cruel and unusual

punishment. Finally, he argues that Defendants have “create[d] an arbitrary system of clemency

evaluation” in violation of the Equal Protection Clause. ECF No. 1 at 28.

          This Court must deny his petition, as none of these claims is likely to succeed on the

merits.

   A. Due Process

          At bottom, Mr. Mitchell’s first claim is that he has a protected liberty interest in a final

decision from the President on his pending clemency petition before his execution. In support, he



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relies on two provisions of the regulations governing executive clemency (“the Regulations”).

See 28 C.F.R. § 1.1 et seq. First, he points to 28 C.F.R. § 1.10(e), which provides that “[o]nly

one request for a commutation of a death sentence will be processed to completion, absent a

clear showing of the clemency proceeding.” He highlights the “to completion” language to argue

that he has a protected right in a final decision from the President. Mr. Mitchell also points to 28

C.F.R. § 1.8(b), which treats the President’s failure to grant or deny clemency in non-capital

cases within thirty days of the Attorney General’s recommendation to deny clemency as an

effective denial. He argues that the exception for capital cases means that, in capital cases, the

President must take action. ECF No. 1 at 13.

       These Regulations do not give Mr. Mitchell a protected liberty interest in a decision on

his clemency petition from the President. In fact, the Regulations explicitly say that they “create

no enforceable rights in persons applying for executive clemency.” 28 C.F.R. § 1.11. This should

come as no surprise, as the U.S. Constitution provides that the President “shall have power to

grant reprieves” for federal crimes. U.S. Const. Art. II, § 2. Included within this discretion, of

course, is the decision not to take any action. It is not within the province of this Court to order

the President to make a decision on Mr. Mitchell’s clemency petition.

       Mr. Mitchell’s reliance on Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998) to

argue that he has a protected liberty interest is misplaced. In Woodard, a state prisoner sentenced

to death challenged Ohio’s clemency proceedings as violating the Due Process Clause of the

Fourteenth Amendment. 523 U.S. at 277. The Supreme Court disagreed. Id. at 288. It held that

Ohio’s clemency proceedings did not violate due process, as they did “no more than confirm”

that the clemency power is committed to the “authority of the executive.” Id. at 276.




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        In Justice O’Connor’s concurrence in part and concurrence in the judgment—joined by

Justices Souter, Ginsburg, and Breyer—she wrote that “some minimal procedural safeguards

apply to clemency proceedings.” 523 U.S. at 289. For example, she explained, judicial

intervention may be warranted if a state official flipped a coin to decide whether to grant

clemency or if a state arbitrarily denied a prisoner access to its clemency proceedings. Id.

        Neither of these circumstances are present here. Mr. Mitchell does not challenge the

President’s ultimate decision on his clemency petition. 1 Nor does he argue that the Defendants

arbitrarily denied him access to executive clemency proceedings. To the contrary, he completed

the full clemency process with the OPA: after he submitted his materials to the OPA and had a

hearing, the OPA considered his materials and sent its recommendation to the President. ECF

No. 7-1 at 3. Similarly, Justice O’Connor ultimately concluded that Ohio’s clemency

proceedings did not violate due process because the prisoner received a notice of his hearing and

an opportunity to participate in an interview. 532 U.S. at 289.

    B. Eighth Amendment

        Next, Mr. Mitchell claims that by stripping him of his most basic procedural safeguards,

Defendants have violated his Eighth Amendment guarantee against the arbitrary infliction of

cruel and unusual punishment. But as explained above, Mr. Mitchell has not demonstrated a

likelihood of success on the merits of his Due Process Claim. Plus, before this Court can decide

whether there was an arbitrary infliction of cruel and unusual punishment, there must be cruel

and unusual punishment in the first place. Mr. Mitchell fails to argue that his execution amounts

to cruel and unusual punishment.



1
  Even if Mr. Mitchell were challenging the President’s ultimate decision to deny his clemency petition,
Justice O’Connor’s opinion would be of little use to him, as her hypotheticals involved state officials, not
the President of the United States. See 523 U.S. at 298.

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    C. Equal Protection

        Finally, Mr. Mitchell claims that by scheduling his execution on a “shortened timeline,”

and scheduling other federal inmates’ executions with enough time for the President to decide

their clemency requests, Defendants have deprived him of his right to have his request processed

to completion. ECF No. 3 at 15. Yet as explained above, no federal inmates have a right to the

President’s final decision on their clemency request. Thus, Mr. Mitchell is unlikely to succeed on

the merits of his claim that Defendants violated the Equal Protection Clause of the Fifth

Amendment.

                                               *****

        In sum, none of Mr. Mitchell’s claims is likely to succeed on the merits. And though the

standard for likelihood of success on the merits can be lowered in the event of a strong showing

of irreparable harm, this “sliding scale” approach cannot eviscerate the likelihood-of-success

requirement altogether. Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir.

2009). Thus, because there is no likelihood of success on any of Mr. Mitchell’s claims, we need

not address the remaining three requirements for a TRO. 2




2
  Defendants argue that because the OPA processed Mr. Mitchell’s request and sent it to the President,
Mr. Mitchell’s claims are moot. ECF No. 7 at 17. The Court disagrees. Mr. Mitchell argues that the
Defendants have “intentionally stymie[d] the clemency process” by scheduling his execution on short
notice. ECF No. 3 at 11. Though the OPA already sent its recommendation to the President, the Court is
not aware of any rule preventing Defendants from delaying Mr. Mitchell’s execution to give the President
more time to make a decision. Nevertheless, the Court will deny Mr. Mitchell’s petition because he has
failed to show a likelihood of success on the merits.

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                                       CONCLUSION

       Based on the foregoing, the Court will DENY plaintiff Lezmond Charles Mitchell’s

application for a Temporary Restraining Order and Preliminary Injunction.

       A separate Order accompanies this Memorandum Opinion.




Date: August 26, 2020                                       s/ Hon. Royce C. Lamberth
                                                          United States District Court Judge




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