Medellin, Ex Parte Jose Ernesto

IN THE COURT OF CRIMINAL

APPEALS

OF TEXAS

NO.

AP-75,207

EX

PARTE JOSE ERNESTO MEDELLIN, Applicant

ON

APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM

HARRIS COUNTY

Keller, P.J., filed a concurring opinion.

On behalf of the United States as amicus curiae, the

U.S. Attorney General = s office has taken the position that President Bush = s memorandum constitutes an order requiring this

Court to ignore rules of procedural default (including rules governing

contemporaneous objections at trial and statutes governing subsequent habeas

corpus applications) and evaluate anew whether applicant was prejudiced by a

failure to comply with the Vienna Convention on Consular Relations. I conclude that the President of the United

States does not have the power to order a state court to conduct such a review.

A Although the source of the President = s power to act in foreign affairs does not enjoy any

textual detail, the historical gloss on the > executive

Power = vested in Article II of the Constitution has

recognized the President = s > vast share of responsibility for the conduct of our

foreign relations. = @ [1]

Nevertheless, the executive = s power in this regard is not without limits, as it

must still be A exercised in subordination to the applicable

provisions of the Constitution. @ [2] Among the

principles enshrined in the United States Constitution is that of federalism B the separate sovereignty of the state and federal

governments B embodied in the structure of the Constitution, [3]

as well as in the Tenth Amendment. [4] Although federalism was A the unique contribution of the Framers [of the U.S.

Constitution] to political science and political theory, @ there remains A much uncertainty respecting the existence, and the

content, of standards that allow the Judiciary to play a significant role in

maintaining the design contemplated by the Framers. @ [5]

Nevertheless, I agree with Justice Kennedy that A the federal balance is too essential a part of our

constitutional structure and plays too vital a role in securing freedom for

[the judiciary] to admit inability to intervene when one or the other level of

Government have tipped the scales too far. @ [6]

In line with Justice Kennedy = s pronouncement, the United States Supreme Court has

increasingly stepped forward to prevent the national government from intruding

into the sphere of state power. The

Court has adopted a general policy against federal injunctive interference with

the course of a pending state criminal prosecution. [7] The Court has struck down Congressional enactments

relating to criminal justice that concerned traditional areas of state

authority [8]

and that imposed obligations on state officials with respect to a federal

regulatory scheme. [9] Although the Court has not struck down a

treaty or an executive agreement for impermissibly intruding upon state

authority, it has in several instances construed such documents to avoid

preemption of state law where the state law in question involved a traditional

area of state competence and applied equally to citizens and non-citizens. [10]

One of those instances regards the Vienna Convention

treaty itself; the Supreme Court has explicitly recognized that the treaty does

not preempt state rules of procedural default. [11] To the extent that the President purports to

trump such state rules by the memorandum, then, he does not act pursuant to the

treaty = s authorization.

Nor does he act according to the Optional Protocol, which gave the

International Court of Justice (ICJ) jurisdiction of disputes A arising out of the interpretation or application of

the Convention @ but did not purport to confer jurisdiction regarding

the remedy to apply in the event the ICJ determined that a violation of

the treaty had occurred. [12] Even if the ICJ had been authorized to craft

a remedy, however, that authorization surely could not include deciding which

level or organ of government would implement such a remedy; the latter would be

an internal matter for the party-nation itself to determine.

Consequently,

the President must depend solely upon his inherent foreign relations power to

justify the action he has taken, and as a result, his action should be subject

to greater scrutiny. It is true that the

President = s foreign relations power can accomplish the

preemption of state law through, for example, executive agreement. [13] But the treaty process, with the requirement

that a supermajority of the Senate concur,

is in the United States Constitution for a reason; [14]

Alexander Hamilton suggested in the Federalist Papers that the provision

operates as an important check on the President = s

power. [15] I find it significant that this check is

exercised by the Senate, the organ of the national government most closely

aligned with the states.

The Supreme Court has suggested that the proper

analysis for determining whether a president = s

exercise of his foreign relations power preempts state law is to determine

first whether the state has acted within an area of A traditional state responsibility, @ and if it has, to assess the degree of conflict

with federal policy and the strength of the state interest involved. [16] Unlike other federal preemption cases in

which a state has prevailed, we address here an express, stark conflict between

the President = s assertion of power (at least under the Justice

Department = s interpretation) and the state law at issue. Nevertheless, given the principle that a

weighty state interest lessens the likelihood of federal preemption, it follows

that a president cannot use his foreign affairs authority to intrude into the

state arena with impunity: at some point, the national interest is served in

too attenuated a manner by the specific presidential action, and the state

interest intruded upon is too fundamental, to permit a president = s intervention.

Such a case is now before us. Criminal justice is an area primarily of

state concern. The Supreme Court has

repeatedly recognized that the A States possess primary authority for defining and

enforcing the criminal law. @ [17] And states

have, to say the least, an overwhelming interest in the procedures followed in

their own courts. In Younger , the

Supreme Court found that A a proper respect for state functions @ counseled against injunctive interference by the

federal courts with the progress of a state prosecution. [18] But the presidential memorandum attempts to

do something just as intrusive: it attempts to force the states to

conduct proceedings they would not otherwise conduct and to do so in a manner

inconsistent with their own procedures.

The Supreme Court has itself refrained from engaging in this kind of A lawmaking. @ [19] Moreover,

the memorandum ignores A the importance of the procedural default rules in an

adversary system. @ [20] These rules,

which are neutral B applying to everyone, not just foreign nationals B A are designed to encourage parties to raise their claims

promptly and to vindicate the law = s important interest in finality of judgments. @ [21] When a

habeas petitioner asked the United States Supreme Court in Sanchez-Llamas

to exempt Vienna Convention claims from the rules of procedural default, the

Court responded that the relief requested was A by any

measure, extraordinary. @ [22] The Court

observed that the exception to procedural default rules requested in that case

(as in this one) A is accorded to almost no other right, including many

of our most fundamental constitutional protections. @ [23] The

President = s action here is unprecedented.

And such extraordinary action is not necessary. The adversary system offers the foreign

national the opportunity to raise a Vienna Convention claim before or during

trial. If he does so, the trial court is

in a position to afford an appropriate remedy B if a

judicial remedy is appropriate at all. [24] If the foreign national is represented by

counsel, and counsel fails to raise the Vienna Convention issue in a timely

fashion, then a A safety valve @ exists in the form of an ineffective assistance of

counsel claim that can be raised on an initial application for writ of habeas

corpus. If all other avenues in the

state are exhausted, the foreign national can still apply to the Board of Pardons

and Parole and the Governor for executive clemency. And the foreign national has the option to

litigate a habeas petition in the federal system.

The President has made an admirable attempt to

resolve a complicated issue involving the United States = international obligations. But this unprecedented, unnecessary, and

intrusive exercise of power over the Texas court system cannot be supported by

the foreign policy authority conferred on him by the United States Constitution. As a consequence, the presidential memorandum does not

constitute a new legal or factual basis for relief under Art. 11.071, ' 5, nor does it override ' 5 = s requirements.

With these comments, I concur in the judgment

with regard to the analysis of the president = s

memorandum and otherwise join the Court = s opinion.

Keller, P.J.

Date

filed: November 15, 2006

Publish

[1] American

Ins. Assn. v. Garamendi , 539 U.S. 396, 414 (2003)(quoting in part Youngstown

Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 610-611 (1952)(Frankfurter,

J., concurring)).

[2] Id.

at 416 n. 9.

[3] See U.S.

Const., Arts. I, ' 2 (members of the House of Representatives elected

by people A of the several States @ ), ' 3 (Senate composed of two senators from each state),

' 4 (time, place and manner of elections for

representatives and senators prescribed by each state), ' 10 (specific prohibitions against the states), II, ' 1 (states appoint presidential electors), IV, ' 1 (full faith and credit between states), ' 2 (privileges and immunities of citizens of the

states), ' 3 (admission of new states into the union), ' 4 (duties of U.S. to its states), V (state ratification

of amendments proposed by Congress).

[4] U.S. Const.,

Amend X: A The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved to the States

respectively, or to the people. @

[5] United

States v. Lopez , 514 U.S. 549, 575 (1995)(Kennedy, J., concurring).

[6] Id.

at 578 .

[7] Younger

v. Harris , 401 U.S. 37, 45-54 (1971)(abstention doctrine).

[8] Lopez ,

514 U.S. 549 (striking down law criminalizing possession of a firearm in a

gun-free school zone); United States v. Morrison , 529 U.S. 598

(2000)(invalidating statutorily-created civil cause of action for victims of

gender-motivated violence).

[9] Printz v. United States , 521 U.S. 898 (1997)(striking provision requiring

state and local law enforcement officials to conduct background checks on

prospective handgun purchasers).

[10] Todok v.

Union State Bank , 281 U.S. 449, 454-455 (1930)(treaty of amity and commerce

did not preempt Nebraska homestead law); Guaranty Trust Co. v. United States ,

304 U.S. 126, 142-143 (1938)(executive agreement with the Soviet Government

assigning economic claims did not preempt New York statute of limitations); Sanchez-Llamas

v. Oregon , 126 S. Ct. 2669, 2682-2688 (2006)(Vienna Convention treaty does

not preempt state rules of procedural default).

[11] Sanchez-Llamas ,

supra .

[12] Under the

ICJ statute, four different topics can be made subject to the international

court = s compulsory jurisdiction:

a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established would constitute a

breach of an international obligation,

d. the nature and extent of the reparation to be made for the breach

of an international obligation . @

Statute of the Court of

International Justice , Art. 36, ' 2 (emphasis added).

The Optional Protocol subjects to the ICJ = s

compulsory jurisdiction only A [d]isputes arising out of the interpretation or

application of the Convention. @ Optional

Protocol to Vienna Convention on Consular Relations Concerning the Compulsory

Settlement of Disputes , Art. I (emphasis added).

[13] Garamendi ,

539 U.S. at 416 ( A Generally, then valid executive agreements are fit

to preempt state law, just as treaties are, @ but

see caveat referenced earlier in this opinion and cited in footnote 2).

[14] See U.S.

Const., Art. II, ' 2 ( A He shall have Power, by and with the Advice and

Consent of the Senate, to make Treaties, provided that two thirds of the

Senators present concur @ ).

[15] Alexander

Hamilton, Federalist Papers , No.

75.

[16] Garamendi ,

539 U.S. at 420 , 420 n. 11.

[17] Lopez ,

514 U.S. at 561 n. 3 (quoting Brecht v. Abrahamson , 507 U.S. 619, 635

(1993)(quoting Engle v. Isaac , 456 U.S. 107, 128 (1982))).

[18] 401 U.S. at

44 .

[19] Sanchez-Llamas ,

126 S. Ct. at 2680 ( A where a treaty does not provide a particular remedy,

either expressly or implicitly, it is not for the federal courts to impose one

on the States through lawmaking of their own @ ),

2687 (The petitioner A asks us to require the States to hear Vienna

Convention claims raised for the first time in state postconviction

proceedings. Given that the convention

itself imposes no such requirement, we do not perceive any grounds for us to

revise state procedural rules in this fashion. @ )(emphasis

in original).

[20] Id.

at 2685 .

[21] Id.

[22] Id.

at 2687 .

[23] Id.

at 2688 .

[24] See Id.

at 2680 (expressing doubt about the appropriateness of a judicial remedy).