                                                                             FILED
                              FOR PUBLICATION
                                                                              AUG 19 2020
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No.   20-99009

              Plaintiff-Appellee,                 D.C. No.
                                                  3:01-cr-01062-DGC-1
 v.

LEZMOND C. MITCHELL,                              OPINION

              Defendant-Appellant.


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

                      Argued and Submitted August 18, 2020
                              Pasadena, California

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

                                     Per Curiam


      Lezmond Mitchell has filed an emergency motion to stay his execution

pending appeal of the denial of his motion to strike his execution warrant, vacate

his execution, and enjoin violation of the district court’s original judgment. We

deny the motion because Mitchell has not carried his burden of demonstrating
either that he is likely to succeed on the merits or that it is probable that he would

suffer an irreparable injury in the absence of a stay.

                                            I

      Lezmond Mitchell was convicted of numerous offenses and sentenced to

death in September 2003.1 The district court’s judgment (the “Judgment”)

provides, “When the sentence is to be implemented, the Attorney General shall

release the defendant to the custody of the United States Marshal, who shall

supervise implementation of the sentence in the manner prescribed by the law of

the State of Arizona.”2 The parties agree that, for present purposes, there is no




      1
        We have described the facts of this case in detail in three prior opinions.
See generally Mitchell v. United States, 958 F.3d 775 (9th Cir. 2020); Mitchell v.
United States, 790 F.3d 881 (9th Cir. 2015); United States v. Mitchell, 502 F.3d
931 (9th Cir. 2007).
      2
        The district court amended the Judgment on January 8, 2004, but left the
provision quoted above unchanged.
                                           2
meaningful difference between the language of the Judgment and the language of

the Federal Death Penalty Act (FDPA). See 18 U.S.C. § 3596(a).3

      On July 25, 2019, T.J. Watson, the warden of the Federal Correctional

Complex at Terre Haute, Indiana, served Mitchell with a letter indicating that the

Bureau of Prisons had set an execution date of December 11, 2019.4 On October 4,

2019, however, we stayed Mitchell’s execution pending resolution of his third

appeal. Mitchell v. United States, No. 18-17031, ECF No. 26 (Oct. 4, 2019).

      On July 29, 2020, after we rejected Mitchell’s appeal but before the mandate

issued, see Fed. R. App. P. 41(b), Watson served Mitchell with another letter


      3
          The FDPA provides, in pertinent part:

      A person who has been sentenced to death pursuant to this chapter shall be
      committed to the custody of the Attorney General until exhaustion of the
      procedures for appeal of the judgment of conviction and for review of the
      sentence. When the sentence is to be implemented, the Attorney General
      shall release the person sentenced to death to the custody of a United States
      marshal, who shall supervise implementation of the sentence in the manner
      prescribed by the law of the State in which the sentence is imposed. If the
      law of the State does not provide for implementation of a sentence of death,
      the court shall designate another State, the law of which does provide for the
      implementation of a sentence of death, and the sentence shall be
      implemented in the latter State in the manner prescribed by such law.

18 U.S.C. § 3596(a).
      4
        On July 31, 2019, Watson served Mitchell with an amended letter that
corrected the name of the sentencing judge, which had been misstated on the prior
version.
                                          3
indicating that the Bureau of Prisons had set a new execution date of August 26,

2020 (the “Execution Warrant”). The Execution Warrant states that it “serve[s] as

official notification that pursuant to [28 C.F.R. § 26.3(a)(1)], the Director of the

Federal Bureau of Prisons has set August 26, 2020, as the date for your execution

by lethal injection.”5

      On August 6, 2020, Mitchell filed a motion in district court to strike the

Execution Warrant, vacate his execution date, and enjoin any violation of the

Judgment. Mitchell argued that if the Bureau of Prisons follows its execution

protocols his execution will not be “implement[ed] . . . in the manner prescribed by

the law of [Arizona]” and thus will be in violation of the Judgment and 18 U.S.C.

§ 3596(a). In support of his argument, Mitchell identified specific procedures set

forth in Arizona statutes, the Arizona Rules of Criminal Procedure, and the

Arizona Department of Corrections’s Department Order 710 (the “Department

Order Manual”). According to Mitchell, the Bureau of Prisons’ protocols are

inconsistent with or allow it to deviate from these Arizona procedures.




      5
       28 C.F.R. § 26.3(a)(1) establishes how the Bureau of Prisons will
determine the date and time for an execution.
                                           4
      The district court denied the motion. Mitchell filed a notice of appeal with

the district court and moved to stay his execution pending resolution of the appeal.

We heard argument on Tuesday, August 18, 2020.

                                            II

      We consider Mitchell’s motion for a stay pending appeal using the

“traditional test for stays” set out in Nken v. Holder, 556 U.S. 418, 433 (2009).

This test considers four factors: “(1) whether the stay applicant has made a strong

showing that he is likely to succeed on the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether issuance of the stay will substantially

injure the other parties interested in the proceeding; and (4) where the public

interest lies.” Id. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).

The party seeking the stay bears the burden of showing that these factors favor a

stay. Id. at 433–34. “The first two factors . . . are the most critical,” and the “mere

possibility” of success or irreparable injury is insufficient to satisfy them. Id. at

434 (cleaned up). As to likelihood of success, the movant must show a “reasonable

probability” or “fair prospect” of success. Leiva-Perez v. Holder, 640 F.3d 962,

967 (9th Cir. 2011) (citation omitted). As to irreparable harm, the standard is

higher: the movant must demonstrate that irreparable harm is probable—as

opposed to merely possible—if the stay is not granted; that is, irreparable harm


                                            5
must be “the more probable or likely outcome.” Id. at 968. We consider the final

two factors only “[o]nce an applicant satisfies the first two.” Nken, 556 U.S. at

435.

       Mitchell argues that he is entitled to a stay pending appeal of the district

court’s order because the district court erred in denying his motion for injunctive

relief. Mitchell claims that on appeal of the district court’s order, he would have a

likelihood of success on the merits of his claim that inconsistencies between the

Bureau of Prisons’ protocol for implementing his execution and Arizona’s

procedures violate the Judgment and the FDPA. Mitchell likewise asserts that he

would prevail on the second injunctive relief factor, that he will suffer an

irreparable harm, due to the possibility that he “could be executed by means of an

illegal protocol.”

       For purposes of Mitchell’s stay motion, we need not comprehensively

delineate the scope of the FDPA. Cf. In re Execution Protocol Cases, 955 F.3d

106 (D.C. Cir. 2020), cert. denied sub nom. Bourgeois v. Barr, No. (19A1050),

2020 WL 3492763 (U.S. June 29, 2020). We assume without deciding that the

Department Order Manual constitutes “law of the State” for purposes of the FDPA

and the Judgment. See 18 U.S.C. § 3596(a) (requiring the sentence to be

implemented “in the manner prescribed by the law of the State in which the


                                            6
sentence is imposed”). In addition, we hold that procedures that do not effectuate

death fall outside the scope of 18 U.S.C. § 3596(a). See Peterson v. Barr, 965 F.3d

549, 554 (7th Cir. 2020). The FDPA incorporates only those state laws that

prescribe the manner for “implementation” of a death sentence. See 18 U.S.C.

§ 3596(a) (“When the sentence is to be implemented, the Attorney General shall

release the person sentenced to death to the custody of a United States marshal,

who shall supervise implementation of the sentence in the manner prescribed by

the law of the State in which the sentence is imposed.”). In this context,

“implement” means “to carry out” or “to give practical effect to and ensure of

actual fulfillment by concrete measures.” Implement, Webster’s Third New

International Dictionary 1134 (1961). Therefore, 18 U.S.C. § 3596(a) addresses, at

most, state laws that set forth procedures for giving practical effect to a sentence of

death. We therefore agree with the Seventh Circuit’s conclusion that, even under a

broad reading, the FDPA incorporates “only ‘those [state] procedures that

effectuate the death, including choice of lethal substances, dosages, vein-access

procedures, and medical-personnel requirements.’” Peterson, 965 F.3d at 554

(citation omitted).




                                           7
      In his stay motion, Mitchell identifies six purported inconsistencies between

the Bureau of Prisons’ execution protocol and the procedures in the Department

Order Manual.6 We consider each in turn.

      First, he points to the Department Order Manual’s requirement that the IV

Team be “currently certified or licensed within the United States to place IV lines.”

The Bureau of Prisons’ protocol provides that “[q]ualified personnel includes

currently licensed physicians, nurses, EMTs, Paramedics, Phlebotomists, other

medically trained personnel, including those trained in the United States Military

having at least one year professional experience and other personnel with


      6
        In district court, Mitchell identified five additional purported
inconsistencies relating to: (1) the presence of witnesses and spiritual advisers,
Ariz. Rev. Stat. § 13-758; (2) notice of an execution date, Ariz. Rev. Stat. § 13-
759; (3) judicial postponement of execution dates upon a finding of impracticality,
Ariz. R. Crim. P. 31.23(c); (4) accommodations for defense counsel during the
execution, such as the provision of temporary office space and access to mobile
devices; and (5) discretion given the Director of the Arizona Department of
Corrections to modify the execution protocol. Because Mitchell has not raised
these purported inconsistencies in connection with his motion to stay his execution
pending appeal, we do not consider them. See Greenwood v. F.A.A., 28 F.3d 971,
977 (9th Cir. 1994). Moreover, the first four purported inconsistencies fall outside
the scope of 18 U.S.C. § 3596(a), because they are not pertinent to effectuating
death. See Peterson, 965 F.3d at 554.

       At oral argument, Mitchell argued for the first time that the Bureau of
Prisons’ protocol calls for the use of a saline flush in a manner that is different
from the Department Order Manual. Mitchell forfeited any reliance on this
difference because it was neither raised to the district court nor raised in the
briefing. See Sierra Med. Servs. All. v. Kent, 883 F.3d 1216, 1223 (9th Cir. 2018).
                                          8
necessary training and experience in a specific execution related function.” We see

little difference between these requirements; both require that the persons placing

IV lines have the appropriate qualifications. Given the substantial overlap between

the two protocols, Mitchell argues only that it is possible that the “[q]ualified

personnel” referred to in the Bureau of Prisons’ protocol might not be “currently

certified or licensed within the United States to place IV lines.”

      As to the second and third examples of purported inconsistencies, Mitchell

points to the Department Order Manual’s requirements that “[a] central femoral

venous line will not be used unless the person placing the line is currently

qualified” to do so and that “[t]he IV Team shall be responsible for inserting either

peripheral IV catheters or a central femoral line as determined by the Director

acting upon the recommendation of the IV Team Leader.” The Bureau of Prisons’

protocol provides that a “suitable venous access line or lines will be inserted and

inspected by qualified personnel” and that “[t]he Director or designee shall

determine the method of venous access (1) based on the training and experience of

personnel establishing the intravenous access; (2) to comply with specific orders of

federal courts; or (3) based upon a recommendation from qualified personnel.”

Again, we see little difference between the protocols; both give the Director

discretion to determine, based on a recommendation from qualified personnel, the


                                           9
method of venous access, and both protocols require that the venous access line be

placed by qualified personnel. At oral argument, Mitchell primarily focused on the

possibility that under the Bureau of Prisons’ protocol, the decision to insert a

peripheral IV catheter or a central femoral line may be made without a

recommendation of a person “currently certified or licensed within the United

States to place IV lines.” This argument therefore merges with his first

claim—that it is possible that the Bureau of Prisons may allow persons without the

proper qualifications to place IV lines.

      Fourth, Mitchell points to the Department Order Manual’s requirement that a

chemical used in execution “have an expiration or beyond-use date that is after the

date that an execution is carried out.” The Bureau of Prisons’ protocol also

prohibits the use of expired drugs: its March 10, 2020 General Guidelines for

Compounding and Testing Pentobarbital Sodium for Use in Executions (the

“General Guidelines”) provide that an injectable solution is “available for use”

only if, among other things, “its expiration date has not passed.” Therefore, the

state and federal requirements are substantially the same. Mitchell argues only that

it is possible that the Bureau of Prisons will not comply with its protocol or will

make last-minute changes to its protocol.




                                            10
      Fifth, Mitchell points to the Department Order Manual’s requirement that

the “decision to use a compounded or non-compounded chemical . . . be provided

to the inmate and their counsel of record in writing at the time the state files a

request for Warrant of Execution in the Arizona Supreme Court.” Because the

Bureau of Prisons has made public its decision to use compounded Sodium

Pentobarbital in the General Guidelines, Mitchell has received notice that the

Bureau of Prisons intends to use compounded Pentobarbital Sodium to carry out

the execution.

      Sixth, Mitchell points to the Department Order Manual’s requirement that

“[a] quantitative analysis of any compounded or non-compounded chemical to be

used in the execution shall be provided upon request within ten calendar days after

the state seeks a Warrant of Execution.” At oral argument, Mitchell conceded that

he had not requested such a quantitative analysis from the Bureau of Prisons, but

such information has been made readily available to him. The government

represented in district court that the “BOP has tested its compounded pentobarbital

for quality assurance,” and has publicly filed certificates of analysis and laboratory

reports regarding Pentobarbital Sodium in the United States District Court for the




                                           11
District of Columbia. See In re BOP Execution Protocol Cases, 1:19-mc-00145-

TSC, ECF No. 39-1 at 975–1020; ECF No. 97-2 at 1–9.7

      We are not persuaded by Mitchell’s arguments. The Bureau of Prisons’

protocol and the Department Order Manual procedures on which Mitchell relies

are largely indistinguishable. To the extent there is any difference between the

federal and Arizona procedures with respect to the first four examples, the Bureau

of Prisons has provided a declaration certifying that it will comply with those

procedures.8 As to the fifth and sixth examples, the Bureau of Prisons has

complied with the Department Order Manual’s procedures. Therefore, Mitchell

has not carried his burden of proving a “reasonable probability,” Leiva-Perez, 640

F.3d at 967 (citations omitted), that his execution will be carried out in a manner

inconsistent with Arizona law (assuming that the Department Order Manual is state

law). It is not enough to show a “mere possibility” that the Bureau of Prisons

might use protocols inconsistent with Arizona procedures. Id. (cleaned up). Nor


      7
         This procedure arguably also falls outside the scope of 18 U.S.C.
§ 3596(a), because providing such information is not pertinent to the effectuation
of death. See Peterson, 965 F.3d at 554.
      8
        Mitchell filed a reply to the Bureau of Prisons’ declaration, to which he
attached a 37-page document setting forth additional purported inconsistencies
between the Bureau of Prisons’ protocol and Arizona procedures. Reliance on
these purported differences was forfeited. See supra note 6; Greenwood, 28 F.3d
at 977.
                                          12
has Mitchell carried his burden of showing that it is more probable than not, id. at

968, that he will suffer any irreparable harm. Therefore, Mitchell is not entitled to

the “extraordinary remedy” of a stay pending appeal, Nken, 556 U.S. at 428

(citation omitted), and we do not address the final two factors, see id. at 435.

                                          ***

      In sum, Mitchell has not carried his burden of demonstrating a likelihood of

success on the merits or that it is probable that he will suffer irreparable harm, and

therefore he is not entitled to a stay or to the underlying injunctive relief he seeks.

We also recognize that the Supreme Court has instructed us that last-minute stays

of executions “should be the extreme exception, not the norm.” Barr v. Lee, No.

20A8, 2020 WL 3964985, at *2 (U.S. July 14, 2020) (citation omitted). We

therefore deny Mitchell’s motion for a stay of execution pending appeal and affirm

the district court’s order denying his motion to strike the Execution Warrant,

vacate the execution date, or enjoin violation of the Judgment.

      IT IS SO ORDERED.




                                           13
