Appendix — Republic of Paraguay v. Gilmore

Supreme Court brief1998

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ORIGINAL PAGLNATION IS NOT CONTINUOUS.

VIRGINIA:

IN THE CIRCUIT COURT OF ARLINGTON COUNTY

COMMONWEALTH OF VIRGINIA,

’. Docket Nos. CR92-1467, 1664-1668

ORDER

Pursuant to Section 53.1-232.1 of the Code of Virginia, baving determined thar the

United States Court of Appeals for the Fourth Circuit bas denied habeas corpus relief to the

defendart, this Court hereby ORDERS that the death sentence of Angel Breard be carned cua on

the 14th day of April. 1998. at such « time of day as the Direcoor of the Depertoes of

Corrections shall fix.

It is further ORDERED that at least tem (10) days before April 14, 1998, the Director

shall cause a copy of this Order to be delivered to the defendant and, if the defendart is unabic 1

read it, cause it to be <xplained co him. The Director shall make return thereof to the Clerk of

this Court.

The Clerk is directed to prormpay furnish certified copies of this Order to the followmg

persons:

Ronald J. Angelons, Direcuxr

Virginia Department of Corrections

P.O. Box 26963

6900 Atmore Drive

Richmand, Virgmma 23261

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2770

(CA-96-745-R)

THE REPUBLIC OF PARAGUAY; JORGE J.

PRIETO, Ambassador of the Republic of Paraguay

to the United States; JOSE ANTONIO DOS

SANTOS, Consul General of the Republic of

Paraguay to the United States,

versus

GEORGE F. ALLEN, Governor of the

Commonwealth of Virginia; RICHARD CULLEN,

Attorney General for the Commonwealth of

Virginia; RONALD J. ANGELONE, Director of

Corrections for the Commonweaith of Virginia;

DAVID A. GARRAGHTY, Warden, Greensville

Correctional Facility, Jarratt, Virginia; SAMUEL V.

PRUETT, Warden, Mecklenburg Correctional

Facility, Boydton, Virginia, PAUL F. SHERIDAN,

Judge for the Circuit Court of Arlington County,

Virginia; BENJAMIN N.A. KENDRICK, Judge for

the Circuit Court of Arlington County; WILLIAM

NEWMAN, JR., Judge for the Circuit Court of

Arlington County; WILLIAM L. WINSTON,

Honorable, Judge for the Circuit Court of Arlington

County; RICHARD E. TRODDEN,

Commonwealth's Attorney for the County of

Arlington; EDWARD A. FLYNN, Chief of Police of

Arlington County,

UNION INTERNATIONALE DES AVOCATS;

UNITED STATES OF AMERICA; FREDERICK M.

ABBOTT; DAVID J. BEDERMAN; RICHARD B.

BILDER; DAVID D. CARON; ANTHONY

D'AMATO; LORI FISLER DAMROSCH; WILLIAM

DODGE; MARTHA A. FIELD; JOAN M.

Ce 2

FILED: March 31, 1998

Plaintiffs - Appellants,

Defendants - Appellees.

Se MAR -25° 9B(WED) 17:43 "ea TEL:0 P. 002

IN THE

FITZPATRICK; EGON GUTTMAN; LOUIS

HENKIN; HAROLD HONGJU KOH; BURT UNITED STATES COURT OF APPEALS

LOCKWOOD; STEFAN A. RIESENFELD; OSCAR FOR THE FOURTH CIRCUIT

SCHACHTER; HERMAN SCHWARTZ;

ANNE-MARKH SLAUGHTER; RALPH GUSTAV

STEINHARDT; DAVID WEISSBRODT,

No. 96-2770

Amici Curiae. .

- THE REPUBLIC OF PARAGUAY, et al.,

ORDER Appellants

Vv.

il ! li f inj

Appellants have filed an application for stay of or injunction against the execution JAMES S. GILMORE, III, GOVERNOR OF VIRGINIA, et al.,

of Ange! Breard, the appeliant in case No. 96-25, Breard v. Pruett, pending disposition by the

Appellees

United States Supreme Court of their petition for writ of certiorari. Appellees filed a response in

opposition to the application. APPELLEES’ OPPOSITION TO APPELLANTS’

The Court denies appellants’ application for stay of or injunction against MOTION TO STAY ANGEL BREARD'S EXECUTION

execution. [f there ever were any doubt that Paraguay’s federal lawsuit always has been nothing

Entered at the direction of Senior Judge Phillips with the concurrence of Judge more than a thinly-veiled attempt to thwart Angel Breard’s death sentence, Paraguay’s present

Widener and Judge Murnaghan. motion to stay Breard’s execution certainly removed it. This Court should deny the motion for

For the Court the following reasons:

/s/ Patricia S. Connor 1. On January 22, 1998, this Court affirmed the district court’s dismissal of

om Paraguay’s lawsuit for lack of jurisdiction. Paraguay v. Allen, 134 F.3d 622 (4th Cir. 1998).

Paraguay did not seek rehearing in banc or ask this Court to stay its mandate. The mandate

issued on February 13, 1998.

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2. On February 24, 1998, Paraguay filed a petition for a writ of certiorari in the

Supreme Court.’ On February 25, 1998, the state trial court scheduled Angel Breard’s execution

for April 14, 1998. Paraguay could have filed its stay request in this Court at any time after

February 25 when the state tial court scheduled Breard’s execution for April 14. Instead,

Paraguay waited a full month and did not file its stay request until March 24.

3. Whether Breard is entitled to a stay of execution is an issue that tis Court

undoubtedly will address in the context of the stay motion he now has pending in this Court.

The answer to that question, however, must depend on the merits of Breard’s case, not

Paraguay’s civil suit. Paraguay and its officials clearly have no standing to seek or obtain a stay

of Bread’s execution. Under 28 U.S.C. § 2101(f), this Court has the authority to stay a

“judgment or decree” that is subject to review by petition for certiorari. But, while Paraguay and

its officials certainly were parties to this Court’s judgment in Paraguay’s civil case, staying the

judgment in that case cannot possibly operate to stay Breard’s execution. And, indeed, Paraguay

has not asked this Court to stay its judgment in the civil case.

4. What Paraguay has done instead is to ask this Court to stay Breard’s April 14

execution date. Paraguay and its officials, however, are not, and never have been, parties to the

case that resulted in the presumptively valid state court cnminal judgment against Breard that

they now seek to stay. This Court’s sole authority to stay Breard’s execution is pursuant to 28

' Breard filed his certiorari petition on March 11, 1998. The Commonwealth filed its brief in

opposition on March 19. Breard filed his stay motion in this Court on March 23, and the

Commonwealth filed its opposition on March 24. This Court has not yet acted upon the motion.

There is absolutely no question that the Supreme Court can and will dispose of Breard’s

certiorari petition, as well as his inevitable stay request, prior to the scheduled time of execution.

MAR -25 98(WED) 17:44 _ TEL: 0 P. 004

U.S.C. § 2251,? and Paraguay clearly has no standing under that statute to seck such a stay

because neither it nor its officials are a party to Breard’s ongoing § 2254 proceeding.

S. In Breard's federal habeas case, both this Court and the district court correctly have

ruled that his “Vienna Convention" claim is barred by his procedural default in failing ever to have

raised the claim im state court. See Breard v. Pruen, 134 F.3d 615, 619-620 (4th Cir. 1998),

affirming, Breard v_ Netherland, 949 F Supp. 1255, 1263 (ED. Va 1996); see generally Gray v.

Netherland, 116 S.Ct. 2074, 2080-2081 (1996) (claims never raised in state court are barred from

federal habeas review).’ It thus is obvious that Paraguay is attempting to obtain a stay of execution

for Breard because his underlying habeas claim is barred and, as e matter of law, cannot support the

granting of a stay. This Court clearly cannot permit Paraguay to obtain for Breard what he cannot

obtain in hus own nght.

6 In Gomez v, United States District Court, 503 U.S. 653 (1992), the Supreme Court

made clear that a suit under 42 U.S.C. § 1983 cannot be employed to obtain a stay of execution

that would be precluded under the rules governing successive federal habeas petitions. See

Lonchar v. Thomas, 116 S.Ct. 1293, 1301 (1996) (interpreting Gomez to mean that the habeas

rules “would apply, even if § 1983 [was] also a proper vehicle [for the] claim’’); Felker v. Turpin,

101 F.3d 95, 96 (11th Cir.) (“Gomez held that a plaintiff cannot escape the rules regarding

? “A justice or judge of the United States before whom a habeas corpus proceeding is pending,

may...stay any proceeding against the person detained in any State court or by or under the

authority of any State for any matter involved in the habeas corpus proceeding.” 28 U.S.C. §

2251.

> Even if Breard’s “Vienna Convention” claim were not procedurally defaulted, a federal habeas

court could not grant relief upon such a claim without violating the “new rule” doctrine. See

generally Caspari v. Bohlen, 510 U.S. 383, 390 (1994). \o court ever has held that an alleged

violation of the Vienna Convention may serve as a basis for overturning a State prisoner's

conviction or sentence. If such a rule ever is created, it must be announced on direct appeal, not

federal collateral review.

JAR. -25° 98(WED) 17:44 ‘ea TEL:0 P. 005

second or successive habeas petitions by simply filing a § 1983 claim”), cert. denied, 117 S.Ct.

451 (1996). Regardless of whether such a § 1983 suit is filed by the prisoner himself or by a

third party, if the object of the suit is to obtain for the prisoner relief from his conviction or

sentence to which he would not be entitled in a federal habeas proceeding, Gomez dictates that

the attempted circumvention must fail.

7. On numerous occasions during just the last year, the Supreme Court has denied

stays of execution premised upon ongoing § 1983 litigation designed to evade the rules

governing federal habeas review under § 2254. See, ¢g., Buchanan v. Gilmore, 118S.C1.___,

1998 U.S. LEXIS 1782 (Mar. 18, 1998); Tucker v. Texas, 118 S.Ct. 906 (1998); In re Mu’Min.

118 S.Ct. 438 (1997) (in addition to denying stay, Court also denied “petition for writ to preserve

[§ 1983) jurisdiction”); Perry v. Norris, 118 S.Ct. 15 (1997); O"Del] v. Allen, 118 S.Ct. 2 (1997)

(denial of injunction); Ip re O'DelJ, 118 S.Ct. 2 (1997) (denial of stay); McQueen v. Sapp, 117

S.Ct. 2536 (1997); Woratzeck v. Arizona Board of Clemency, 117 S.Ct. 2500 (1997). See also

Griffin v. Missouri, 515 U.S. 1153 (1995); Poyner v. Murray, 507 U.S. 981 (1993).*

8. Even if Paraguay could speak for Breard - and it cannot - it clearly would not be

entitled to a stay of Breard’s execution under the stringent rules governing federal habeas

proceedings. Gomez and its progeny require that this Court deny Paraguay's attempt to

circumvent those rules by requesting a stay of Breard’s execution, an extraordinary form of

federal collateral relief to which neither Breard nor Paraguay is entitled. Indeed, just last week a

panel of this Court vacated a stay of execution improvidently granted by a district court on the

* In Poyner, the Supreme Court denied a stay of execution and the prisoner was executed as

scheduled on March 18, 1993. Significantly, the Court did not dispose of the certiorari petition

in the § 1983 proceeding upon which the stay request had been premised until two months later.

See Povner vy. Murray, $08 U.S. 931 (1993).

MAR -25 9BTWED) 17:45 Lz TEL:0 P. 006

basis of a § 1983 suit filed by a death row prisoner. See Buchanan v. Gilmore, _ F.3d si,

1998 U.S. App. LEXIS 5058 (4th Cir., Mar. 18, 1998) (Judges Ervin, Hall and Butzner). The

Supreme Court subsequently denied the prisoner's stay request and he was executed as

scheduled. See Buchanan, 1998 U.S. LEXIS 1782. Obviously, if a State prisoner himself cannot

obtain a stay of execution on the basis of a § 1983 suit he has filed, a third-party § 1983 suit such

as Paraguay's cannot support such a stay.

9. Moreover, even if Paraguay could overcome all of the foregoing obstacles to the

granting of a stay, this Court still should deny Paraguay’s request to stay Breard’s execution.

Under Barefoot v_ Estelle, 463 U.S. 880, 895 (1983), this Court may not stay a State prisoner's

execution unless there is a reasonable probability that four Justices would vote to grant certoran in

his case, and there is a significant possibility the Court would reverse the decision of the court of

appeals. See Netherland v. Tuggle, 116 S.Ct. 4, 5 (1995). Paraguay cannot possibly meet this

stringent standard.

10. _‘ First of all, Paraguay filed its certiorari petition in the Supreme Court more than a

month ago. Thus, even if the impropriety of a third-party request to stay Breard’s execution were

dropped from the equation, it is self-evident that the Supreme Cour is far better situated than this

Court to determine whether it needs more time to consider a certiorari petition that was filed weeks

ago.

11. | Moreover, as demonstrated in the Warden's opposition to Breard’s stay request

(Attachment ,, there is mo likelihood the Supreme Court will grant Breard’s certiorari petition or

reverse this Court's decision denying him federal habeas relief. But, even if the granting of a stay

of Breard’s execution could be made to turn on the likelihood the Court will grant Paraguay’s

certiorari petition, the result would be the same. The specific issue raised in Paraguay's certiorari

petition is whether the federal courts have jurisdiction to entertain a civil suit brought by 2 foreign

country and its officials against the officials of a State, where the sole object of the suit is the

invalidation of a state prisoner's criminal conviction and sentence. On that issue, the only two

federal appeals courts that have considered the matter have concurred that the question must be

answered in the negative. See Paraguay, 134 F.3d at 627-629; United Mexican States v_ Woods,

126 F.3d 1220, 1222-1224 (9th Cir. 1997). The Supreme Court, of course, grants certiorari “only

for compelling reasons." U.S.Sup.Ct. Rule 10. Primary among such “compelling reasons” is the

existence of a “conflict” between the decision of a court of appeals in the case where review is

being sought and “the decision of another...court of appeals on the same important matter.” Rule

10(a). Given the lac« of conflict among the courts of appeals, there is no reasonable probability

that the Supreme Court will grant certiorari in Paraguay's case. Paraguay’s pending certiorari

petition, therefore, could not furnish the basis for a stay of Breard’s execution even if Paraguay

could overcome its clear lack of standing to request such relief.

12. There also is no significant possibility that the Supreme Court would reverse this

Court's decision. The Eleventh Amendment clearly does not permit a foreign nation to sue a State

in federal court. See Principality of Monaco v. Mississippi, 292 U.S. 318 (1934). A suit, the

primary purpose of which is the setting aside of a State prisoner’s criminal conviction or sentence

is, in reality, a suit against the State, see Idaho v. Coeur d’ Alene Tribe, 117 S.Ct. 2028, 2034 (1997)

(Eleventh Amendinent bars suit against state officials when State is the real, substantial party in

interest), and the State's interests are at their apex when the validity of its criminal judgments are

challenged collaterally in federal court. See generally McCleskey v. Zant, 499 U.S. 467, 491-492

(1991). Moreover, the statutory habeas corpus remedy embodied in § 2254 proceedings is “well

established” as the sole relevant exception to the State’s Eleventh Amendment immunity. See

eee eee a

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Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1182 (1996) (Souter, J., dissenting);

Paraguay, 134 F.3d at 627-628 n.6. Therefore, outside the limited context of federal collateral

proceedings initiated by a State prisoner, the federal courts have no jurisdiction to entertain a suit,

like Paraguay’s, where the sine gua non is the overturning of the prisoner's capital murder

conviction and death sentence. See Paraguay, 134 F.3d at 627-629; Woods, 126 F.3d at 1222-

1224.

13. Even if this Court were wrong about the Eleventh Amendment, there stil/ would be

no significant possibility of reversal in this case. As the district court found, see Paraguay, 949 F.

Supp. at 1273, the lower federal courts simply have no jurisdiction to conduct what is, in effect, a

direct review of the State court criminal judgment against Breard. See District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-

416 (1923). Moreover, as both the Commonwealth and the United States argued in this Court,’ the

issues raised by Paraguay about alleged treaty violations and the remedies therefor, are essentially

non-justiciable “political questions” which are beyond the jurisdiction of the federal courts. See

generally Baker v_ Carr, 369 U.S. 186, 211 (1962); see also Head Money Cases, 112 U.S. 580, 598

(1884) (a weaty “depends for the enforcement of its provisions on the interest and honor of the

governments which are parties to it. If these fail, its infraction becomes the subject of

imternational negotiations and reclamations...fbut) with all this the judicial courts have nothing to

* The United States filed an amicus brief in this Court supporting the Commonwealth's position

that the federal courts lack jurisdiction to entertain Paraguay's suit. The United States also

presented its position during oral argument on June 4, 1997. Finally, the United States

communicated its position to Paraguay in a letter from the Department of State to the

Ambassador of Paraguay dated July 7, 1997. (Attachmeni 2). This Court, therefore, should not

be misled by Paraguay’s suggestion that this Court's decision “is inconsistent with” the position

of the United States. (Paraguay’s Stay Memorandum at 8).

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do and can give no redress”); Foster v. Neilson, 27 U.S. 253, 314 (1829) ("when either of the Office of the County Attorney

#1 Courthouse Plaza, Suite 403

parties [to a treaty) engages to perform a particular act, the treaty addresses itself to the political, 2100 Claredon Boulevard

Arlington, Virginia 22201

not the judicial department"). Because there is no significant possibility that the Supreme Court

would reverse this Court’s conclusion that the federal courts lack jurisdiction to entertain

Paraguay’s suit, the pending certiorari petition cannot conceivably serve as the basis for a stay of CERTIFICATE OF SERVICE

Breard’s execution.‘ On March 25, 1998, a copy of this Opposition was mailed and faxed to Donald F.

Donovan, Debevoise & Plimpton, 875 Third Avenue, New York, NY 10022, counsel for

CONCLUSION

appellants.

Paraguay’s motion for a stay of Angel Breard’s execution should be denied.

papery ain GS

JAMES S, GILMORE, II, GOVERNOR Donald R. Curry

OF VIRGINIA, et al. Senior Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

By: Aira ag | Ravebdlian

Ara L. Tramblian

Deputy County Attorney

* Under Barefoot, in addition to the “substantial probability” and “significant possibility”

requirements, the party seeking a stay of execution also must demonstrate a “likelihood of

irreparable harm.” See Barefoot, 463 U.S. at 895. When the movant is a death row prisoner

himself, this requirement usually is deemed satisfied. Paraguay, however, simply cannot

demonstrate any likelihood of “irreparable harm” to itself or to its officials if Breard is executed

while its certiorari petition remains pending, especially if Breard himself has asked for and

been denied a stay.

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IN THE 4. Both the Supreme Court and this Court have made clear that a prisoner under

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT sentence of death is not automatically entitled to a stay of execution for purposes of filing a petition

for a writ of certiorari. See Netherland v. Tuggle, 116 $.Ct. 4. 5 (1995); Autry v. Estelle, 464 U.S.

ANGEL FRANCISCO BREARD,

1, 2-3 (1983); Beaver v. Netherland, 101 F.3d 997 (4th Cir. 1996). Quite clearly, moreover, the

Appellant

re Supreme Court is in the best position to determine whether a stay of execution is necessary for it to

. — have sufficient time to rule upon the petition Breard already has filed. Indeed, the Supreme Court

v. 0.

FRED W. GREENE, WARDEN,

WARDEN’S OPPOSITION TO

MOTION FOR STAY OF EXECUTION

The Warden, by counsel, opposes Angel Breard’s motion for a stay of execution:

l. In a published opinion dated January 22, 1998, this Court affirmed the denial of

federal inabeas corpus relief in Breard’s casc. Breard v. Pruett, 134 F.3d 615 (4th Cir. 1998). The

Court denied Breard’s petition for rehearing on February 18, 1998.

2. On February 25, 1998, pursuant to Virginia Code § 53.1-253.1, the state trial court

scheduled Breard’s execution for April 14, 1998. On February 26, 1998, this Court issued its

mandate.

3. Breard now asks this Court to issue a stay of execution so that the Supreme Court

will have adequate time to consider a petition for a writ of certiorari which he filed on March 11,

1998. Well-settled principles require that this request be denied.

is Court recall the mandate. Both the stay

motion and the request to recall the mandate should be denied. ;

ATTACHMENT 1

has not hesitated to grant a stay when necessary or to deny a stay when umnecessary. See, c.c.,

Buchanan v. Angelone, 117 S. Ct. 1423 (1997) (stay granted); Mu’Min v. Pruett, 118 S.Ct. 438

(1997) (stay denied). As this Court is wel] aware, the three full weeks remaining before Breard’s

April 14 execution date is more than enough time for the Supreme Court to dispose of the certiorari

petition that Breard filed two weeks ago.’

5. In any event, Breard must satisfy the test established in Barefoot v. Estelle, 463 U.S.

880 (1983), in order for this Court to stay his execution. Specifically, Breard is entitled to a stay

only if he can sstablish that there is “a reasonable probability that four niembers of the [Supreme]

Court would consider the underlying issues sufficiently meritorious for the grant of certiorari” and

that there is “a significant possibility of reversal of [this] Court’s decision [by the Supreme Court]”

if certiorari were granted. See Tuggle, 116 S. Ct at 5. Breard clearly has not satisfied these

demanding requirements.

6. In his certiorari petition, Breard has raised his so-called “Vienna Convention” claim.

This Court correctly ruled that the claim is procedurally barred because it is undisputed that Breard

never raised the claim in state court and because he had failed to show the required “cause” for the

* The respondent filed his brief in opposition to Breard’s netition on March 19.

MAR -25 98(WED) 17:47

default. Breard, 134 F.3d at 619-620. It thus would be difficult to imagine a claim with Jess chance

of the Supreme Court’s granting certiorari and reversing this Court’s decision.

7. The recent actions of the Supreme Cour in cases from Virginia and Texas

demonstrate that there is no substantial likelihood the Court will grant certioran to review defaulted

“Vienna Convention” claims such as Breard’s. In September of 1997, the Supreme Court denied

Mario Murphy's certiorari petition and request for a stay of execution in a case where this Court

had ruled, just as it has in Breard’s case, that a “Vienna Convention” claim never raised in state

court is barred from federal habeas review. See Murphy v. Netherland, 116 F.3d 97 (4th Cir.), stav

and cert. denied, 118 S.Ct. 26 (1997). Murphy was executed as scheduled on September 17, 1997.

Similarly, in June of 1997, the Supreme Court denied a stay request and a petition for a writ of

habeas corpus in a capital case from Texas where the prisoner was raising a defaulted “Vienna

Convention” claim. See In Re Irineo Tristan Montoya, 117 S.Ct. 2476 (1997). Montoya was

executed as scheduled on June 18, 1997.’

8. Breard also has raised his “proportionality review” claim in his certiorari petition.

This Court correctly ruled that the claim is defaulted because it was raised on direct appeal solely as

a matter of state law and because, when it first was raised as a federal “due process” claim during

the state habeas proceedings, the Virginia Supreme Court expressly applied its procedural default

rule. See Breard, 134 F.3d at 621.‘

* In both Murphy and Montoya, the prisoners’ petitions filed in the Supreme Court squarely

raised the alleged “Vienna Convention” violations. (See Attachments A and B). iedesd. the

Pr mane peal in Murphy’s certiorari petition are virtually identical to Breard’s.

ttachment A).

* Even if the claim were not defaulted, moreover, it fails to raise a cognizable federal issue. See

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (errors of state law not cognizable);

Angelone, 100 F.3d 353, 360 (4th Cir. 1996) (Virginia Supreme Court is final arbiter of scope of

State appellate review), cert. denied, 117 S.Ct. 854 (1997).

TEL: 0 P.015

4R.-25° 98(WED) 17:47 TEL:0 P.Ol4

9. As a matter of law, claims that are barred from federal collateral review by

established principles of procedural default cannot provide a basis for the granting of a stay under

the Barefoot standard. See Bowersox v, Williams, 116 S.Ct. 1312 (1996); Delo v. Stokes, 495

U.S. 320 (1990); see also McCleskey v. Zant, 499 U.S. 467, 490 (1991) (equating principles of

procedural default and abuse of writ). There is no reasonable probability that the Supreme Court

will grant certiorari to review this Court's fact-specific application of the procedural default

doctrine or its determination that Breard has not shown “cause” for his defaults.

10. For the foregoing reasons, this Court should deny Breard’s motion for a stay of

execution.

Respectfully submitted,

FRED W. GREENE, WARDEN

By:

unsc! /

Donald R. Curry

Senior Assistant Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

(804) 786-4624

MAR “od JOIMEU) 1/°48 TEL:0 P 018 MMR -25° ORIWED) 17:48 TEL: 0 P O16

United tes Department of State

Washingwa, D.C 20520

On March 24, 1998, a copy of the foregoing Opposition was mailed and faxed to Alexander .

Slaughter, McGuire, Woods, Battle & Boothe, One James Center, 90] East Cary Street, Richmond, aor

Virginia 23219-4030, counsel for appellant.

Dear Ambassador Prieto:

6) De I am responding ing on behalf of the Department of State to your letter to Ambassador

) Curry Davidow of June 3, 1997, concerning the matter of Mr. Angel Breard. Your letter was received

Senior Assistant Anorney General at the same time that my letter to you of the same date concerning this case was delivered to your

CA ER

occurred with to his detention and discusses the alternative possibility of these matters

being considered by the Imernationa] Court of Justice.

assistance, the Department

advise all alien detainees of this right We have now had extensive discussions with such

officials about how consular notification and access should be implemented.

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COMMONWEALTH of VIRGINIA

Richard Cullen Office of the Anorney General $00 East Mein Sires

Anermey Genera! Richmond 23219 ee aa

CRIMINAL LITIGATION SECTION ™

CAPITAL LITIGATION UNIT

TELEPHONE: (804) 786-4624

FAX: (804) 786-0142

FACSIMILE COVERSHEET

DATE: Mae. 25, 1998

TO: Donacp DONOVAN / DeSevoise $ PUMPTON

FROM: Donald R. Curry, Senior Assistant Attorney General

NUMBER OF PAGES FOLLOWING COVER: |7

COMMENTS:

Fitep THIS AFTERROON IN CAY ; HARD COPY

BY MAIL

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In THE

UNITED STATES COURT OF APPEALS

For THE FourtH Circuit

No. 96-2770

THE REPUBLIC OF PARAGUAY; JoRGE J. PRIETO, Ambassador

of the Republic of Paraguay to the United States, and José

ANTONIO Dos SANTOS, Consul General of the Republic of

Paraguay to the United States,

Plaintiffs-Appellants,

GEORGE F. ALLEN, Governor of the Commonwealth of

Virginia, (additional parties listed inside cover)

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DisTRICT Court

FOR THE EASTERN DISTRICT OF VIRGINIA

—— nel

PLAINTIFFS-APPELLANTS' BRIEF

———

Donald Francis Donovan Loren Kieve

Barton Legum DeBevoise & PLIMPTON

Michael M. Ostrove $55 13th Street, N.W.

Alexander A. Yanos Washington, D.C. 20004

DeBevoise & PLIMPTON (202) 383-8070

875 Third Avenue Attorneys for Plaintiffs-.

New York, New York 10022 Appelianis

(212) 909-6000 (additional counsel listed

Dated: March 4, 1997 inside cover)

Additional Parties:

JAMES S. Gi_more II), Attorney General for the

Commonwealth of Virginia; RONALD J. ANGELONE, Director

of Corrections for the Commonwealth of Virginia; DAVID A.

GARRAGHTY, Warden, Greensville Correctional Facility,

Jarratt, Virginia; J.D. NETHERLAND, Warden, Mecklenburg

Correctional Facility, Boydton, Virginia; PAUL F.

SHERIDAN, Judge for the Circuit Court of Arlington County,

Virginia; BENJAMIN N.A. KENDRICK, Judge for the Circuit

Court of Arlington County; WILLIAM NEWMAN, Jr., Judge

for the Circuit Court of Arlington County; WILLIAM L.

WINSTON, Judge for the Circuit Court of Arlington County;

RICHARD E. TRopDEN, Commonwealth's Attorney for the

County of Arlington; and Ropert A. DREISCHER, Acting

Chief of Police for the County of Arlington,

Defendants-Appellees.

Additional Counsel:

Professor Rodney A. Smolia

Professor Linda A. Malone

College of William and Mary

Marshall-Wythe School of Law

South Henry Street

P.O. Box 8795

Williamsburg, Virginia 23187

(804) 221-3800

Associate Professor Leslie M. Kelleher

T.C. Williams School of Law

University of Richmond

Richmond, Virginia 23173

(804) 289-8359

Attorneys for Plaintiffs-Appellants

DISCLOSURE OF CORPORATE AFFILIATIONS AND

OTHER ENTITIES WITH A DIRECT FINANCIAL

INTEREST IN LITIGATION

Pursuant to Federal Rule of Appellate Procedure

26.1 and Fourth Circuit Local Rule 26.1, plaintiffs-appeliants

the Republic of Paraguay, Ambassador Jorge J. Prieto and

Consul General José Antonio Dos Santos make the following

disclosure:

1. Is the party a publicly held corporation or

other publicly held entity?

No.

2. Is the party a parent, subsidiary, or affiliate

of, or a trade association representing, a publicly held

corporation, or other publicly held entity (see Local Rule

26. 1(b))?

No.

3. Is there any other publicly held corporation,

or other publicly held entity, that has a direct financial interest

in the outcome of the litigation (see Local Rule 26. 1(b))?

No.

TABLE OF CONTENTS

TABLE OF AUTEOORITIES . ww ccc cece

STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION ..........

The Treaty Obligations ...................

Defendants’ Continuing

Violation Of Paraguay’s Rights ..............

The District Court's Decision ...............

SUMMARY OF ARGUMENT .................

GUUEEEED DORK es wdte veserercecvessenn s

1. Because IT SEEKS ONLY TO PROSPECTIVELY

COMPEL DEFENDANTS TO END THE CONTINUING

HARM RESULTING FROM THEIR VIOLATION OF

FEDERAL LAW, PARAGUAY'S SurT Is NoT

BARRED BY SOVEREIGN IMMUNITY.........

il.

ADDENDUM

A. Paraguay Seeks Injunctive Relief Against

Consequences Of Past Deprivations Of

Federal Rights That Is Authorized By Ex

FE GD Sed erectswbsceeuses

B. Paraguay Seeks An Injunction Against An

Ongoing Violation Of Its Rights Under

. 2 Srrrrererrer ys

THe District Court HAD JURISDICTION OVER

PARAGUAY'S ACTION TO VINDICATE ITS TREATY

RIGHTS BECAUSE PARAGUAY WAS NOT A PARTY

TO THE STATE COURT ACTION AND HAD No

APPEAL TO THE SUPREME COURT. ........

A. The District Court Has Jurisdiction Over

Paraguay's Action To Enforce Treaty

Rights Violated By State Officials... ...

B. The Rooker/Feldman Doctrine Does Not

Bar Paraguay's Claims.............

COTATI wc cc cwescesccecesvcucees

REPRODUCING FEDERAL

ou) oy Aes ee

WEATEED cw ccc ect ecenecccssesssese

1. Vienna Convention on Consular Relations,

Apr. 24, 1963, 21 U.S.T. 77, 596

Sas ee Faw vcceveitnoseve

STATUTES

Treaty of Friendship, Commerce, and

Navigation, Feb. 4, 1859, U.S.-Para., 12

RE sa ke ea eo ie ce ek A-3

Consular Convention, June 6, 1951, U.S.-

Pe oe oe A-3

Consular Convention, June 1, 1964, U.S. -

U.S.S.R., 19 U.S.T. 59018 ........ A-4

Agreement on Consular Relations, Jan. 31,

1979, U.S.-China, 30 U.S.T.17..... A-6

Peet tend Shue bnew ek ees bic A-6

TABLE OF AUTHORITIES

CASES

ASARCO, Inc. v. Kadish,

Q9O U.S. GRE CITT nc cc cece cc cccevsccunn 23

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) ww ee es 22

Barnes v. Bosley,

828 F.2d 1253 (8th Cir. 1987) . 2... 0.02. eae 15

Clark v. Cohen,

794 F.2d 79 (3d Cir.), cert. denied,

479 U.S. 962 (1986) 6 ww ee ee ee 16

Coakley v. Welch,

877 F.2d 304 (4th Cir.), cert. denied,

493 U.S. 976 (1989)... owe ee cee 11, 12, 14

Cross v. Alabama,

49 F.3d 1490 (llth Cir. 1995) 2.2.0... ee eee 15

Dickey v. Greene,

729 F.2d 957 (4th Cir. 1984) 2.0. eee 10

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462 (1983) 6. we ee eee 2, 8, 21, 23

E.B. Elliott Adv. Co. v. Metropolitan Dade County,

425 F.2d 1141 (Sth Cir.), cert. dismissed, 400 U.S.

BES CIGTED onc cccccccreeresescecsesesse 24

Eastern Airlines v. Floyd,

GPO. GED ik cdtdeatésentoctccee 18

Edelman v. Jordan,

Gap Wis Ge. Kacdbacctcacteckh cu. 11

Elliott v. Hinds,

766 F.2d 298 (Tth Cir. 1906) 0.2... eee, 15

FOCUS v. Allegheny County Court of Common Pleas,

7S P.2B GRO GEOG. GERD nc ccc cusccncccce 24

Thomas S. v. Flaherty,

902 F.2d 250 (4th Cir.), cert. denied,

Ge Uk SEU cow ened bsenene een 15, 16

French v. Hay,

89 U.S. (22 Wall.) 250 (1874) .. 2.2... 0.66.8, 22

Hall v. Medical College of Ohio,

742 F.2d 299 (6th Cir. 1984), cert. denied, 469 U.S.

SOUP GEREN 6 hvstensessévebucseebunceuc 15

Harter v. Vernon,

et) 10

Johnson v. De Grandy,

POG. Gi Be. we nes cdedeedaube ts 23, 24

Jones v. Meehan,

SUS Wie: SUED 6.60 bac baa senbee hekoseun 22

Leaf v. Supreme Court of Wisconsin,

979 F.2d 589 (7th Cir. 1992), cert. denied,

DP Geiactbandscedacacowe é 24

Leonard v. Suthard,

927 F.2d 168 (4th Cir. 1991) 2... eee 23

McConnell v. Adams,

829 F.2d 1319 (4th Cir. 1987), cert. denied, 486 U.S.

De .usedanseedebrateneestous 13, 14

McCurry v. Tesch,

738 F.2d 271 (8th Cir. 1984), cert. denied, 469 U.S.

Py ceccane d pes ¥ecksééeceset bneas 24

Melo v. Hafer,

912 F.2d 628 (3d Cir. 1990), aff'd on other grounds,

DL Pn acucineboateeecevateene 15

Milliken v. Bradley,

SPE saceseacdséceceeeen 11, 12

Munoz v. County of imperial,

667 F.2d 811 (9th Cir.), cert. denied, 459 U.S.

PEP EEEEED coc cv beeEdeeenricecionveces 22

Papasan v. Allain,

GOGGLE, DEP GD ccc ccccccoccccccss 11, 13

Parents for Quality Educ. with Integration, Inc.

v. Indiana, 977 F.2d 1207 (7th Cir. 1992) ....... 13

Pfizer, Inc. v. India,

Porter v. Warner Holding Co.,

DE” «veces ceaneSuebee tn ewbe

Preiser v. Rodriguez,

PEED. a¢4Wenecctcoaseree 25,

Ramirez v. Oklahoma Dep't of Mental Health,

GE Poe Se GG, FIR nc ccc ccccccsess

Rehabilitation Ass'n of Va., Inc. v. Kozlowski,

42 F.3d 1444 (4th Cir. 1994), cert. denied,

SN an da ke

Richmond, F.&P. R.R. v. United States,

945 F.2d 765 (4th Cir. 1991), cert. denied,

SEP CUUEEED Soccer scccsscdsccccese

Roe v. Alabama, 43 F.3d 574, 580 (i ith Cir.),

certifying questions to 676 So. 2d 1206 (Ala.),

on receipt of answers to certified questions,

52 F.3d 300 (1 ith Cir.), cert. denied,

EE ce nutwdaVs cc tvesouass

Rooker v. Fidelity Trust Co.,

Be es SEGUE ewe cece ecesoscces 21, 23

Russell v. Dunston,

896 F.2d 664 (2d Cir.), cert. denied,

Ce ee ee

vil

Santovincenzo v. Egan,

SPOON cebcéscceceerscancesdenss 18

Schneider v. Colegio de Abogados,

917 F.2d 620 (ist Cir. 1990), cert. denied, 502 U.S.

PEE Seb bncdebeke Cobesentetecoas 24

Stanley v. Darlington County Sch. Dist.,

SPO e Cr GD GUEED wove esecnccesovae 13

Tabion v. Mufti,

Fo OBO Saw CGR. FEUD oc cccccccccccccees 17

United States v. Owens,

54 F.3d 271 (6th Cir.), cert. dismissed,

PEPE «ne déeeées tacédeves 22, 24

United States v. Stuart,

CPs SPEED cocosesecoceseoesseve 17

White v. United States,

SPO HED ceccovecécecsoueses 10

Ex parte Young,

Pa CE «66 eseeeseaeccess 1, 10, 11

CONSTITUTION,

STATUTES AND TREATIES

Gee GO EL cn cbcetosenecesvecesacs 1

wu CU, GH. VES wcctcccccscces 4, 11, 21

Se URED. code ewetdbdecccescusive I

| MPR TUT TET LCT ree 23

SPE | wn dbeevenues skee sekGs sees l

SPEED “es vasccovsbsubdecoasne 1, 21

Pe SOUND cc icscccsdccteceees 1, 22

SS EE ab acecocbdcerednéwnseses 25

Se PEED scobdcecwonsvaces 1, 3, 6, 7, 25

Fed. R. Civ. P. 12(b)(1), 1206) 2... ee. 3, 10

Treaty of Friendship, Commerce and Navigation, Feb. 4,

1859, U.S.-Para., 12 Stat. 1091 ........... passim

Vienna Convention on Consular Relations,

21 U.S.T. 77, $96 U.N.T.S. 261 .......... passim

Consular Convention, June |, 1964, U.S.-U.S.S.R.,

EPs OED « vecsccuccesouseseseene 4,18

MISCELLANEOUS

Arthur W. Rovine, U.S. Dep't of State, Digest of United

States Practice in International Law 1973 (1973) .... 19

Charles A. Wright, Law of Federal Courts

GEE. wweene te bedas cee eeee see ex 16

Commentary on Draft Articles on Consular

Relations Adopted by the International Law

Commission at lis 13th Session, U.N. GAOR,

Conf. on Consular Relations, annex, art. 36,

UN Doc. A/CONF, 25/6 (1963) .. 2.6.6.6. 00 ae 19

Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice

GRE FUREREMIO CTTUED co ccc ccc ccccccevecess 23

U.N. GAOR, Conf. on Consular Relations,

12th plen. mig., agenda item 10, 4 2-9, UN Doc.

A/ConpP. 25/SR. 12, 17 April 1963... .......... 20

STATEMENT OF SUBJECT MATTER

AND APPELLATE JURISDICTION

This is an action for injunctive and declaratory relief to

remedy violations of two treaties of the United States and of 42

U.S.C. § 1983. The District Court therefore had original

jurisdiction under 28 U.S.C. § 1331. In addition, this is an

action in which a foreign state is the plaintiff and citizens of a

state are defendants. The District Court therefore also had

jurisdiction under 28 U.S.C. § 1332(a)(4). While the United

States Supreme Court also had original jurisdiction of this

action, see U.S. Const. art. Ill, § 2, that Court's jurisdiction

over this case is not exclusive. 28 U.S.C. § 1251(b)(1).

On November 27, 1996, the District Court entered a

final order of dismissal that disposed of all claims of all parties

in the action. Plaintiffs-appellants filed their notice of appeal

on December 5, 1996. This Court therefore has appellate

jurisdiction under 28 U.S.C. § 1291.

1. Whether the District Court erroneously held

that, notwithstanding the doctrine of Ex parte Young, 209 U.S.

123 (1908), the Eleventh Amendment bars an action seeking

prospective injunctive relief against state officials to end the

continuing harm the plaintiffs suffer as a result of defendants’

failure to afford them their rights under two treaties of the

United States, on the ground that the injunction would merely

remedy past unlawful conduct, not end a continuing violation

of federal law?

2. Whether the District Court erroneously held

that, under District of Columbia Court of Appeals v. Feldman,

40) U.S. 462 (1983), it lacked subject matter jurisdiction over

an action seeking vacatur of a foreign national's criminal

conviction and sentence brought by the national's sovereign, its

ambassador and its consul even though the plaintiffs here had

not been parties to the state criminal proceedings and sought to

vindicate only their own rights under two treaties of the United

States?

STATEMENT OF THE CASE

This is an action by plaintiffs-appellants the Republic of

Paraguay, its Ambassador Jorge J. Prieto and its Consul

General José Antonio Dos Santos (collectively, “Paraguay") to

enforce the rights granted Paraguay and its consular officers

under two treaties of the United States, the Vienna Convention

on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596

U.N.T.S. 261 (the “Vienna Convention”), and the Treaty of

Friendship, Commerce and Navigation, Feb. 4, 1859, U.S.-

Para., 12 Stat. 1091 (the “Friendship Treaty”) (together, the

“Treaties"). The Treaties provide Paraguay's consular officers

with the rights (/) to receive prompt notification of the

detention of Angel Francisco Breard, a Paraguayan national,

and (2) to provide consular assistance to Breard during the

course of the criminal proceedings against him. No

notification was provided, and Paraguay's consular officers

were allowed access to Breard only after he was tried,

convicted and sentenced to death and had exhausted all appeals

and state habeas proceedings. Defendants are Virginia state

officials who continue to deny Paraguay its right to provide

consular assistance to Breard at a time and in a context where

it can be meaningful and effective.

On September 12, 1996, Paraguay filed its complaint

in the United States District Court for the Eastern District of

Virginia, alleging violations of the two Treaties and, with

respect to plaintiff-appellant Dos Santos, violations of 42

U.S.C. § 1983. The complaint sought, among other relief, an

injunction barring the defendants from aking any future

actions based on Breard's illegally obtained conviction,

vacating the conviction and ordezing the defendants to afford

Paraguay its rights under the Treaties in any further

proceedings against Breard. On October |, 1996, defendants

moved to dismiss the complaint for lack of subject matter

jurisdiction and for failure to state a claim upon which relief

could be granted. Feb. R. Civ. P. 12(b)(1), 12(b)(6).

On November 27, 1996, the District Court (Hon.

Richard L. Williams) entered a final order dismissing the

action for lack of subject matter jurisdiction. The plaintiffs

filed their notice of appeal on December 5, 1996.

STATEMENT OF FACTS

The T Obligati

In 1970, the United States and the Republic of

Paraguay entered into the Vienna Convention. In doing so,

both nations recognized that each sovereign was bound by the

terms of the Convention and that each had the right to have any

violation of those terms by the other remedied. A12-13.'

1. Citations in the form “A__* are to the accompanying Joint

(continued...)

Under the United States Constitution, the Vienna Convention

became part of the “supreme Law of the Land” and binding on

each of the United States. Al2; U.S. Const. an. VI.

A key consular function protected by the Vienna

Convention is assisting nationals of one nation who are arrested

by the law enforcement authorities of the other. Al3-14. Law

enforcement officials in the United States arresting a

Paraguayan national must “without delay” inform the

Paraguayan that he has the right to communicate with a

Paraguayan consular officer. If the Paraguayan so requests,

the law enforcement officials must “without delay” inform the

Paraguayan consular officers of the arrest and permit them to

communicate with the Paraguayan to render assisiance to him

in the criminal proceedings. /d. The Vienna Convention

makes it clear that consular officers must be provided a

meaningful opportunity to exercise their right of consular

communication. Vienna Convention, art, 36(2) (right of

consular communication “shall be exercised in conformity”

with local laws and regulations, provided that such “laws and

regulations must enable full effect to be given to the purposes

for which the rights accorded under this Article are intended”).

Over 130 years ago, in 1860, the United States and the

Republic of Paraguay entered into the Friendship Treaty. Al4-

15. Article XII requires that consular officers of Paraguay be

accorded “whatever privileges, exemptions, and immunities are

or may be” granted by the United States to consular officers

1.(...continued)

Appendix. Except as otherwise noted, the statement of

facts is based on the allegations of the complaint (A6-26).

owe ees eee ee ee ee

“of any other nation whatever.” The United States

subsequently granted to consular officers of other nations,

including the United Kingdom and the Russian Federation, the

privilege of receiving immediate and mandatory notification of

the arrest or detention of one of their nationals by law

enforcement authorities in the United States. Al5S. Under the

Friendship Treaty, law enforcement authorities in the United

States are therefore required to extend Paraguayan consular

officers the same privilege and immediately notify them when

a Paraguayan citizen is arrested. /d.

Defendants’ Continuing

Violation Of P -

On September |, 1992, a Paraguayan citizen, Angel

Francisco Breard, was arrested by the Arlington County police

department on suspicion of murder. Al7. Although they were

aware that Breard was a Paraguayan national, defendanis never

informed Breard of his right under the Vienna Convention to

consular assistance from Paraguay. Nor did they inform

Paraguay that Breard was in their custody. /d. Had

defendanis done so, Breard would have invoked his right to the

assistance of his country's consul, and Paraguay would have

provided him help in his criminal proceeding that could have

changed its outcom., including (a) evaluating the desirability

of Virginia's plea offer of life imprisonment, (b) assessing the

advice of Breard’s counsel that he not testify at trial and

the mitigation phase of Breard’s trial. Al7-20.

On June 24, 1993, Breard was convicted of murder.

A20. On August 22, 1993, the state court imposed a sentence

of death. /d. Breard's direct appeals of the conviction and

sentence were denied, as was his state petition for habeas

corpus. /d. It is undisputed that defendants did not begin to

permit Paraguay to render consular assistance to Breard until

after his direct appeals and state habeas proceedings were

exhausted. E.g., Al7, A87.

Defendants’ failure to advise Breard of his rights, to

advise Paraguay of Breard's detention and to afford Paraguay

a meaningful opportunity to provide consular assistance to

Breard violated both the Vienna Convention and the Friendship

Treaty. A7-8, A21-23. These violations caused injury both to

the Republic of Paraguay'’s sovereign interest in protecting the

life and liberty of its citizens abroad through its consular

officers and io the interests of plaintiffs Prieto and Dos Santos

in effectively performing their consular functions. A9, Al3,

A21-24. Defendants’ ongoing failure to provide Paraguay with

a meaningful opportunity to exercise its consular

communication rights continues to violate the Treaties. A7-8.

The District Court's Decisi

In its memorandum opinion, the District Court held

that, as a party to the Treaties, Paraguay had standing to sue

for redress under the Treaties and that the court had the power

to interpret treaties and fashion an equitabie remedy for their

violation. A119 (opinion to be published ai 949 F. Supp.

1269). The court determined that Consul General Dos Santos

is a person within the jurisdiction of the United States and

therefore a proper plaintiff under section 1983. A121. The

court also concluded that, absent any jurisdictional limitations,

the case was suitable for declaratory relief. Id.

For purposes of deciding the motion, the District Court

assumed that the defendants had violated federal law and

Breard's death sentence resulted from these violations. A117.

The court expressed its “disenchant{ment|” with defendants’

violation of the Treaties and pointed to evidence that “the

Commonwealth (of Virginia] has disregarded the Vienna

Convention on at least one other occasion.” A1l17-18, A121

nt.

The District Court nevertheless dismissed Paraguay's

suit, holding that Paraguay had failed to allege the “ongoing

violation” of federal law required to remove the bar of the

Eleventh Amendment and to bring the case within the doctrine

of Ex parte Young. According to the District Court, "[njow

that defendants have given Paraguayan officials access to

Mr. Breard, they are no longer in violation of the treaties.”

All7. The District Court reasoned:

Plaintiffs urge that but for Virginia's alleged

violations of the treaties, Mr. Breard would not

be on death row today. Assuming the validity

of this assertion, it is a tragic consequence of

Virginia's failure to abide by the law.

Nonetheless, it is still a consequence of the

violation and not a continuing wrong.

Id. (emphasis in original). In other words, the District Court

ruled that, even though the defendants are preparing to put

Breard to death without ever providing Paraguay a meaningful

opportunity to afford him the assistance it has a federally

guaranteed right to provide, the court was powerless to grant

relief.

The District Court also ruled that it lacked subject

matter jurisdiction under the Rooker/Feldman doctrine, which

holds that the district courts have no jurisdiction to review state

court judgments on federal questions that are subject to

ultimate review in the Supreme Court. A118 (citing District

of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476

(1983)). The District Court acknowledged that it was the first

forum in which Paraguay had sought relief, that Paraguay

sought to vindicate its own rights rather than those of Breard,

that the case before it was not an appeal and that Paraguay did

not ask it to review trial defects. Id. The court nonetheless

held that it “hajd] no authority to disturb a state court ruling

regardless of the procedural posture of the litigants,” because

“that power rests solely with the Supreme Court of the United

States.” Id.

SUMMARY OF ARGUMENT

The District Court wrongly construed the Eleventh

Amendment to bar Paraguay's claims. Even if the District

Court were correct that defendants’ violation of Paraguay's

rights has ceased, established precedent holds Ex parte Young

to authorize suits against state officials for injunctive relief

remedying the continuing effects of past violations of federal

law, so long as the suit does not seek retroactive damages.

Paraguay seeks no money damages. It asks for an injunction

directing defendants to eliminate the effects of their abiding

refusal to afford Paraguay its substantive rights under the

Treaties. Paraguay's suit comes squarely within the tenets of

Ex parte Young.

In any event, the District Court's conclusion that the

defendants had cured their treaty violations is in error. Rather

than fulfilling their obligation to provide prompt notice and

enable meaningful consular assistance, defendants allowed

Paraguay access to Breard only when it was guaranteed to be

futile—long after he had been tried, convicted and sentenced to

death and had exhausted all appeals and™ state habeas

proceedings. The Treaties secure Paraguay's right to a

meaningful opportunity to assist its detained nationals during

criminal proceedings. The defendants have never provided

Paraguay that opportunity.

The District Court also wrongly decided that the

Rooker/Feldman doctrine barred Paraguay's suit because the

complaint impermissibly sought review of the merits of a final

state judgment. The district courts have jurisdiction of actions

on treaties of the United States, including actions by foreign

States as plaintiffs, and may enjoin enforcement of a state court

judgment rendered in violation of federal law. Paraguay was

not a party to the state proceedings against Breard, had no

possibility of appeal from the state court decisions and had no

opportunity to litigate its claims prior to instituting this action.

Rooker/Feldman therefore does not bar its claims.

ARGUMENT

Standard of Review

"A district court order dismissing a case on the grounds

that the undisputed facts establish a lack of subject matter

jurisdiction is a legal determination subject to de novo appellate

review.” Richmond, F.&P. R.R. v. United States, 945 F.2d

765, 768-69 (4th Cir. 1991) (citation omitted), cert. denied,

503 U.S. 984 (1992); accord White v. United States, 53 F.3d

43, 45 (4th Cir. 1995); see also Harter v. Vernon, 101 F.3d

334, 336-37 (4th Cir. 1996) (questions of applicability of

Eleventh Amendment reviewed de novo).

Where, as here, no evidence was offered on a Rule

12(b)(1) motion to controvert the complaint's allegations, the

Court must assume the truth of the allegations and consider the

complaint in the light most favorable to the plaintiff. White,

53 F.3d at 44; see also Dickey v. Greene, 729 F.2d 957, 958-

59 (4th Cir. 1984) (en banc).

Because It SEEKS ONLY TO PROSPECTIVELY

COMPEL DEFENDANTS TO END THE CONTINUING

HARM RESULTING FROM THEIR VIOLATION OF

FEDERAL LAW, ParRaGuay's Surr Is Nor

BARRED BY SOVEREIGN IMMUNITY.

A. Paraguay Seeks Injunctive Relief

Against Consequences Of Past

Deprivations Of Federal Rights That

ls Authorized By Ex Parte Young.

In Ex parte Young, the Supreme Court held the

Eleventh Amendment's sovereign immunity not to apply to

Suits against state officials acting in their official capacity,

provided that the plaintiff sought only a prospective injunction

to force the state officials to comply with federal law. 209

U.S. 123, 159-160 (1908). As the Court explained, where a

state official acts in a manner inconsistent with federal law,

"(the State has no power to impart to him any immunity from

responsibility to the supreme authority of the United States.”

Id.; accord U.S. Const. art. VI, cl. 2.

To come within the Ex parte Young doctrine, the

plaintiff may seek only prospective injunctive relief, Edelman

v. Jordan, 415 U.S. 651, 667-68 (1974), against an “ongoing”

violation of federal law from which the plaintiff is currently

suffering, Papasan v. Allain, 478 U.S. 265, 282 (1986); see

Coakley v. Welch, 877 F.2d 304, 307 & n.2 (4th Cir.), cert.

denied, 493 U.S. 976 (1989). This requirement ensures that

a plaintiff cannot use Ex parte Young to perpetrate “a raid on

the state treasury for an accrued monetary liability.” Milliken

v. Bradley, 433 U.S. 267, 290 n.22 (1977); see also

Rehabilitation Ass'n of Va., Inc. v. Kozlowski, 42 F.3d 1444,

1449 (4th Cir. 1994) (actions for “prospective injunctive relief

only, rather than any form of retroactive compensatory

damages” may be brought, consistent with Ex parte Young),

cert. denied, 116 S. Ct. 60 (1995). At the same time, the

availability of injunctive relief under Ex parte Young is

“necessary to vindicate the federal interest in assuring the

supremacy of [federal] law." Papasan, 478 U.S. at 278

(internal quotation omitted). Thus, as this Court explained in

Coakley v. Weich:

few, if any, suits are barred for failure to allege

an “ongoing violation” under Papasan. Quite

logically, the courts treat the issue of whether a

violation is “ongoing” as related to the issues of

whether prospective relief is appropriate, or

whether the requested relief would operate

instead as an illegitimate award of retroactive

damages.

877 F.2d at 307 n.2 (citations omitted).

iiere, Paraguay seeks no money damages. The relief

it requests is that defendants take no further actions based on

Breard’s illegally obtained conviction, that the conviction be

vacated and that Paraguay be given the opportunity to

participate meaningfully in any further proceedings against

him. A25. The relief sought would put a direct end to the

continuing harm Paraguay is suffering. This relief accords

with both the express terms and the underlying policy of the Ex

parte Young doctrine.

Notwithstanding these principles, the District Court

held that Virginia's planned execution of Breard, although “a

tragic consequence of Virginia's failure to abide by the law,”

may not be enjoined because it would be a mere “consequence

of the violation and not a continuing wrong.” A117-18

(emphasis in original). The District Court's application of the

“ongoing violation” requirement is flatly contradicted by a

wealth of controlling authority.

In Milliken v. Bradley, the Supreme Court held that the

Eleventh Amendment did not preclude a school desegregation

order that directed Michigan state officials to prospectively

eradicate the effects of segregation by paying half the funds

necessary to implement a remedial education plan for the

Detroit school system. 433 U.S. at 288-90. The Court

concluded that the remedial education program was “plainly

designed to wipe out continuing conditions of inequality

produced by the inherently unequal dual school system long

maintained by Detroit.” Jd. at 290. That the education pian

would be implemented after de jure segregation had been

eliminated did not alter the Court's conclusion. /d.; see also

Stanley v. Darlington County Sch. Dist., 84 F.3d 707, 713

(4th Cir. 1996) (sovereign immunity does not bar federal

courts from compelling a state to provide funds to eliminate all

vestiges of a previously segregated school system), Parents for

Quality Educ. with Integration, Inc. v. Indiana, 977 ¥ 2d

1207, 1210-11 (7th Cir. 1992) (state's failure to take

“affirmative steps to discharge its duty to dismantle the dual

school system that its laws helped to create and maintain . . .

constitutes a continuing violation of the Fourteenth

Amendment").

Similarly, in Papasan, the Supreme Court upheld an

equal protection suit brought by students in a Mississippi

school district that, the students claimed, was underfunded

relative to the rest of the state because, 100 years earlier, the

state had sold lands held in trust for the district's public

schools. Although the Court expressly acknowledged that the

dispute arose from the same past actions that gave rise to a

claim for money damages barred by the Eleventh Amendment,

it held the plaintiffs nonetheless to be entitled to relief from the

current consequences of those past events. The Court held

that, given its focus on the present consequences, the plaintiffs’

equal protection claim alleged “precisely the type of continuing

violation for which a remedy may permissibly be fashioned

under Young.” Papasan, 478 U.S. at 282; see also McConnell

vy. Adams, $29 F.2d 1319, 1329-30 (4th Cir. 1987) (reversing

money damage award against state officials for unconstitutional

refusal to rehire plaintiffs as barred by Eleventh Amendment,

but affirming injunction reinstating plaintiffs as authorized

under Young), cert. denied, 486 U.S. 1006 (1988).

This Court applied the same analysis in Coakley. Mr.

Coakley worked for the South Carolina Port Authority

("SPA") and was fired in violation of the Due Process Clause

of the Fourteenth Amendment. He sought prospective

injunctive relief in the form of reinstatement. ‘This Court

rejected the SPA's argument that reinstatement would violate

its sovereign immunity because Coakley had failed to allege an

“ongoing violation” of his federal rights:

We recognize that from one point of view, all

Coakley has alleged is that for a period in the

past the SPA put him through a process that

deprived him of due process rights, but that the

process, and any relationship between him and

SPA, has ended. This would suggest that his

suit against Welch is barred for want of an

“ongoing” violation. The view we find more

consistent with Papasan and McConnell is that

by his allegations and his prayer for an

injunction, Coakley has alleged SPA conduct

that, while no longer giving him daily attention,

cominues to harm him by preventing him from

obtaining the benefits of SPA employment.

Coakley, 877 F.2d at 307 0.2; accord McConnell, 829 F.2d at

1329-30.?

2. Every circuit court that has addressed this question in the

reinstatement context has reached the same conclusion.

Russell v. Dunston, 896 F.2d 664, 668 (2d Cir.) (“We do

not agree . . . that the existence of a past harm renders an

otherwise forward-looking injunction retroactive. If it did,

the rule allowing prospective relief would be substantially

(continued...)

Finally, in Thomas S. v. Flaherty, 92 F.2d 250 (4th

Cir.), cert. denied, 498 U.S. 951 (1990), this Court upheld an

order directing state officials to provide a class of mentally

retarded adults with treatment to eliminate the continuing

effects of prior mistreaument the class had suffered while in the

state's care. The Court was unwilling to accept the officials’

argument that class members who were no longer in state

custody failed to allege an ongoing violation of federal law:

instead, it held that, consistent with the Eleventh Amendment,

relief had properly been awarded for class members who were

“presently suffering from unconstitutional conditions imposed

while in the hospital.” Jd. at 255. The treatment awarded was

designed only to address the continuing effects of pasi

unconstitutional conditions and therefore was prospective relief

2.(...cominued)

undermined because the need for prospective relief often

arises out of a past injury”), cert. denied, 498 U.S. 813

(1990); Melo v. Hafer, 912 F.2d 628, 635-36 Gd Cir.

1990), aff'd on other grounds, 502 U.S. 21 (1991); Hall v.

Medical College of Ohio, 742 F.2d 299, 310 (6th Cir.

1984), cert. denied, 469 U.S. 1113 (1985); Ellion v.

Hinds, 786 F.2d 298, 302 (7th Cir. 1986) (“Elliott's

alleged wrongful discharge is a continuing violation, as long

as the state official keeps him out of his allegedly tenured

position the official acts in what is claimed to be

of Elliott's constitutional rights”); Barnes v.

Bosley, 828 F.2d 1253, 1257-58 (8th Cir, 1987); Ramirez

v. Oklahoma Dep't of Mental Health, 4\ F.3d 584, 589

(10th Cir, 1994); Cross v. Alabama, 49 F.3d 1490, 1503

(itth Cir, 1995).

that “fully comportjed| with the remedy approved in Milliken

v. Bradley.” Id.; see also Clark v. Cohen, 794 F.2d 79, 84

(3d Cir.) (a “federal court may order state officials to fund

from the state treasury remedial measures found necessary to

undo the harmful effects of past constitutional violations"),

cen. denied, 479 U.S. 962 (1986).

Like the plaintiffs in the desegregation, reinstatement

and mental health cases, Paraguay currently suffers from the

“tragic consequence|s] of (state officials'| abiding failure to

abide by the law.” A117. Where, as here, the relief requested

cannot be construed as a demand for money damages, the

doctrine of Ex parte Young authorizes federal courts to grant

relief. The District Court's ruling would eviscerate a doctrine

that has proved “indispensable to the establishment of

constitutional government and the rule of law." CHARLES A,

WRIGHT, Law OF FepeRaL Courts 312 (Sth ed. 1994). Its

decision should be reversed.

B. Paraguay Seeks An _ injunction

Against An Ongoing Violation Of Its

Rights Under Two Treaties.

A second ground for reversal of the District Court's

Eleventh Amendment holding is its error in construing the

rights accorded and obligations imposed by the Treaties so

narrowly as to find no ongoing violation. The District Court's

Eleventh Amendment analysis was based on the erroneous

premise that defendants’ obligations under the Treaties were

fully satisfied by permitting Paraguay to provide consular

assisiance to Breard at a time when it was useless and

meaningless: afier Breard had been arrested, arraigned, tried

and sentenced to death, had exhausted all appeals and state

habeas proceedings and was scheduled for execution. See

A117 ("Now that defendants have given Paraguayan officials

access to Mr. Breard, they are no longer in violation of the

treaties"). Contrary to the District Court's restrictive reading,

the Treaties guarantee the right to provide meaningful consular

assistance to a state's detained nationals. Because the

defendants continue to deny Paraguay the opportunity to

provide assistance to Breard at a time and in a context where

their assistance could meaningfully affect the outcome or

conduct of the case against him, their violation of Paraguay's

rights is an ongoing and continuing one—even giving “ongoing

violation” the restrictive meaning the District Court accorded

it.

"{A] treaty should generally be ‘consiruejd] . . .

liberally to give effect to the purpose which animates it.'*

United States v. Stuart, 489 U.S. 353, 368 (1988) (quoting

Bacardi Corp. of Am. v. Domenech, 311 U.S. 150, 163

(1940)); Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir. -1996),

"{E]ven where a provision of a treaty fairly admits of two

constructions, one restricting, the other enlarging, rights which

may be claimed under it, the more liberal interpretation is to be

preferred.” Stuart, 489 U.S. at 368 (internal quotation

omitted). This general rule of liberal construction is

supplemented by the Vienna Convention's specific directive

that domestic law be applied so as to “enable full effect to be

given to the purposes for which the rights accorded under this

Article are intended.” Vienna Convention, art. 36(2).

The signatories to the Treaties at issue here required

prompt notification of a national’s detention to ensure that their

respective consular officers could provide meaningful

assistance to the national’s defense, at trial and before. The

Vienna Convention requires the authorities of the arresting

state “without delay” to inform the detained national of his

right to consular assistance, and also requires them, upon the

national's request, "without delay [to] inform the consular post

. if. . . a national of that state is arrested . . . or detained

in any other manner.” Vienna Convention, art. 36(1)(b). By

virtue of its most-favored-nation clause, the Friendship Treaty

likewise requires that a consular officer shall “immediately” be

notified of a national’s arrest and provided access to the

national no more than four days after the arrest. E.g.,

Consular Convention, June 1, 1964, U.S.-U.S.S.R., art.

12(2)-(3) & §§ 1-2 of protocol, 19 U.S.T. 5018, 5027, 5039

(providing privileges of immediate notification and access to

Soviet consuls); see Friendship Treaty, art. XU (Paraguayan

consuls entitled to privileges of most favored nation); see also

Santovincenzo v. Egan, 284 U.S. 30, 35-36 (1931) (under

most -favored-nation clause such as that in Friendship Treaty,

rights and privileges provided other consuls under other treaties

inure to benefit of consul invoking clause).

Reference to nation-state practice is unnecessary given

the clear language of the Treaties here. See Eastern Airlines v.

Floyd, 499 U.S. 530, 535 (1991) (where there are “difficult or

ambiguous passages” in a treaty, courts “may look beyond the

written words to the history of the treaty, the negotiations, and

the practical construction adopted by the parties") (internal

quotation omitted). Nonetheless, state practice underscores

that the District Court's crabbed reading of the rights accorded

by the Treaties was in error. As United States Department of

State has stressed:

Article 36 of the Vienna Convention contains

obligations of the highest order and should not

be dealt with lightly. . . . Serious problems in

this regard (concerning provision of consular

notification “without delay"| have been

experienced by American consular officers in

countries of Eastern Europe, where . . .

detention of an individual for prolonged

“interrogation” prior to the filing of formal

charges is officially sanctioned. During this

period of days, weeks, or even months,

authorities of the receiving state may decline to

observe that State's obligation to make

notification to consular officials of the sending

State. Clearly this type of procedure is not in

keeping with either the letter or the spirit of the

Vienna Convention.

ArTHuR W. Roving, U.S. Dep't or Stare, Diogst of UNITED

STATES PRACTICE IN INTERNATIONAL LAW 1973, 161 (1973)

(emphasis supplied); see Commentary on Draft Articles on

Consular Relations Adopted by the International Law

Commission at lis 13th Session, U.N. GAOR, Conf. on

Consular Relations, annex, art. 36, UN Doc. A/Conr. 25/6,

reprinted in 2 UNITED NATIONS CONFERENCE ON CONSULAR

RELATIONS, OFFICIAL RECORDS 24 (1963) (article 36 intended,

among other things, to enable consular assistance “where a

national of the sending State has been placed in custody

pending trial, and criminal proceedings have been instituted

against him; cases where the national has been sentenced, but

the judgment is still open to appeal or cassation; and also cases

where the judgment convicting the national has become final.”)

(hereinafter Orr. Rec.).?

The clear intent of the Treaties’ provisions for prompt

notification and access is to provide consular officers the

opportunity to assist the national at a time and in a context

where such assistance can be most useful to the national and

most effective in the exercise of consular functions. By

holding that the provision of consular access three years after

Breard's trial and conviction satisfied the Treaties’ requirement

of prompt notification and access, the District Court departed

from the unambiguous text and intent of the Treaties. In the

most fundamental sense, so long as defendants continue to

detain Breard and to take steps to carry out a death sentence

rendered without permitting the notification and access to

which Paraguay is entitled, defendanis continue to violate

Paraguay's rights under the Treaties.

3. Article 36(2)'s requirement that local law give “full effect"

to the article's purposes was adopted over an amendment

proposed by the Soviet Union which would have permitted

domestic law to impair the rights accorded in Article 36 so

long as they did not render them completely inoperative.

U.N. GAOR, Conf. on Consular Relations, 12th plen.

mig., agenda item 10, 44 2-9, UN Doc. A/Conr. 25/SR.

12, 17 April 1963, p. 1, reprinted in | Orr. Rec. 40; see

id. (statement by Mr. Khiestov, USSR) (stating that article

36(2) could “force States to alter their criminal laws and

regulations and allow consuls to interfere with normal legal

procedures in order to protect alien offenders”).

THE District Court HAD JURISDICTION OVER

PARAGUAY'S ACTION TO VINDICATE ITS TREATY

RIGHTS BECAUSE PARAGUAY WAS NOT A PARTY

TO THE STATE CouRT ACTION AND Hab No

APPEAL TO THE SUPREME COURT.

The District Court also erred in holding that Paraguay's

action effectively sought review of a state court judgment

which could be reviewed only by habeas corpus petition or by

the Supreme Court. A118 (citing District of Columbia Court

of Appeals v. Feldman, 460 U.S. 462 (1983)); see also Rooker

v. Fidelity Trust Co., 263 U.S. 413 (1923). Paraguay was not

a party to the state court proceedings, its claims were not

presented to that court, no appeal by Paraguay from the state

proceedings could be had, Paraguay has no habeas remedy and

it seeks no review in this action of any ruling by the state

court. Under established principles of federal law, the District

Court has original jurisdiction over this action and the

Rooker/Feldman doctrine does not operate as a bar.

A. The District Court Has Jurisdiction Over

Paraguay's Action To Enforce Treaty Rights

Violated By State Officials.

The federal district courts have jurisdiction of actions

arising under treaties of the United States. 28 U.S.C. § 1331

("district courts shall have original jurisdiction of all civil

actions arising under the . . . treaties of the United States").

As part of the “supreme Law of the Land,” U.S. Const. art.

VI, cl. 2, the interpretation of treaties has long been held to be

“the peculiar province of the judiciary.” Jones v. Meehan, 175

U.S. 1, 32 (1899).

“[A] foreign nation is generally entitled to prosecute

any civil claim in the couris of the United States upon the same

basis as a domestic corporation or individual might do.”

Pfizer, Inc. v. India, 434 U.S. 308, 318-19 (1978); Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 408-12 (1964)

(unless foreign state is at war with or not recognized by United

States, courts of this country are open to it); see also 28

U.S.C. § 1332(a)(4) (providing jurisdiction over actions

brought by a foreign state “as plaintiff" in the district courts).

And “[ujniess otherwise provided by statute, all the

inherent equitable powers of the District Court are available for

the proper and complete exercise of [its equitable]

jurisdiction.” Porter v. Warner Holding Co., 328 U.S. 395,

398 (1946). In appropriate circumstances, such as those here,

a district court may enjoin any further action to enforce a state

court judgment rendered in violation of federal law. See, ¢.g.,

French v. Hay, 89 U.S. (22 Wall.) 250, 252-53 (1874); United

States v. Owens, 54 F.3d 271, 276-77 (6th Cir.), cert.

dismissed, 116 S. Ct. 492 (1995); Munoz v. County of

Imperial, 667 F.2d 811, 814, 817 (9th Cir.), cert. denied, 459

U.S. 825 (1982).

B. The Rooker/Feldman Doctrine Does Not

Bar Paraguay's Claims.

In holding that the Rooker/Feldman doctrine applied

“regardless of the procedural posture of the litigants,” A118,

the District Court failed to apply the dispositive decisions of

the Supreme Court and every circuit to consider the question.

Under the Rooker/Feldman doctrine, "a party losing in state

court is barred from seeking what in substance would be

appellate review of the state judgment in a United States

District Court." Johnson v. De Grandy, 114 S. Ct. 2647,

2654 (1994) (emphasis supplied). The basis for the doctrine is

that Congress intended the Supreme Court to have exclusive

appellate jurisdiction over state court decisions on federal law

pursuant to 28 U.S.C. § 1257. Feldman, 460 U.S. at 476;

Rooker, 263 U.S. at 416 (citing predecessor statute); see also

Leonard v. Suthard, 927 F.2d 168, 169 (4th Cir. 1991).

Rooker/Feldman expresses a jurisdictional constraint

that imposes order on the flow of federal question cases in the

federal courts system: if a party litigates a federal question in

the state courts and loses, that party may seek review of that

federal question only in the Supreme Court and may not

attempt to evade the requirements of section 1257 by invoking

the district courts’ original jurisdiction over that same question

under section 1331. Feldman, 460 U.S. at 476; Rooker, 263

U.S. at 416; see also ASARCO, Inc. v. Kadish, 490 U.S. 605,

622-23 (1989); 18 CHARLES ALAN WarionT, ArgtHur R.

Mitter & Epwarp H. Cooper, FEDERAL PRACTICE AND

PROCEDURE § 4469 (1981) (doctrine mandates, in essence,

"that federal courts must honor the res judicata effects of state

court judgments").

Contrary to the District Court's ruling, just three years

ago the Supreme Court affirmed that, where the federal

plaintiff was not a party in state court and had no opportunity

to appeal the state court judgment to the Supreme Court, the

plaintiff's claims are not barred by Rooker/Feldman. Johnson

v. De Grandy, 114 S. Ct. at 2654.4 In De Grandy, the

Florida Supreme Court had upheld the constitutionality of an

electoral redistricting enacted by the Florida legislature. 114

S. Ct. at 2652. The United States thereafter brought suit in

federal district court under section 2 of the Voting Rights Act,

alleging that the redistricting diluted minority voting strength.

id. The Supreme Court rejected Florida's argument that

Rooker/Feldman was a bar because the United States was

effectively seeking review of the Florida Supreme Court's

decision in district court: “unlike Rooker or Feldman, the

United States was not a party in the state court.” Jd. at 2654.

Because the United States “was in no position to ask thie

Supreme} Court to review the state court's judgment” and was

4. Every circuit to consider the question has likewise held,

consistent with De Grandy, that Rooker/Feldman is no bar

to a federal plaintiff who was not a party to the state court

proceedings and therefore had no right of appeal to the

Supreme Court. Schneider v. Colegio de Abogados, 917

F.2d 620, 629 (ist Cir. 1990), cert. denied, 502 U.S. 1029

(1992); FOCUS v. Allegheny County Court of Common

Pleas, 75 F.3d 834, 840-41 & n.4 (3d Cir. 1996); EB.

Elliot Adv. Co. v. Metropolitan Dade County, 425 F.2d

1141, 1148-49 (Sth Cir.), cert. dismissed, 400 U.S. 805

(1970), United States v. Owens, 54 F.3d at 274; Leaf v.

Supreme Court of Wisconsin, 979 F.2d 589, 597-98 (7th

Cir. 1992), cert. denied, 508 U.S. 941 (1993); McCurry v.

Tesch, 738 F.2d 271, 274 & n.3 (8th Cir. 1984), cert.

denied, 469 U.S. 1211 (1985); Roe v. Alabama, 43 F.3d

574, 580 (llth Cir.), certifying questions to 676 So. 2d

1206 (Ala.), on receipt of answers to certified questions, 52

F.3d 300 (1 ith Cir.), cert. denied, 116 §. Ct. 276 (1995).

“merely seek{ing] to litigate its § 2 case for the first time,”

Rooker/Feidman did not bar it from proceeding in the federal

courts. /d.

Like the United States in De Grandy, Paraguay was not

a party to the state court proceedings. i seeks for the first

time an injunction in federal court against Virginia's continuing

interference with its federally-protected consular functions.

The Rooker/Feldman doctrine does noi bar its claims.°

5. The District Court also cited in its Rooker/Feldman

discussion the decision in Preiser v. Rodriguez, 411 U.S.

475 (1973), which defendants had urged as an independent

ground for dismissal. It is unclear whether the District

Court viewed Preiser as additional support fer its ruling that

Rooker/Feldman bars Paraguay's claims, as « appeared to

cite Preiser only for the undisputed proposition that

Rooker/Feldman does not bar federal habeas review of state

court decisions. See A118. in any event, Preiser provides

no such support.

The issue in Preiser was whether, where both 42 U.S.C.

§ 1983 and 28 U.S.C. § 2254 provided a remedy, a state

prisoner could elect to proceed under the more general

provisions of section 1983. 411 U.S. at 482-90. While

acknowledging that section 1983's broad language literally

encompassed the prisoners’ claims, the Court held that “the

specific federal habeas corpus statute, explicitly and

historically designed to provide the means for a state

prisoner to attack the validity of his confinement, must be

understood to be the exclusive remedy available in a

(continued...)

Under no rationale can the state court judgment

preclude Paraguay's claim here. The essence of Paraguay's

claim ts that it was deprived of its federally protected right to

assisi us Citizen because i was never informed of the existence

of the proceedings against him. By suggesting that the very

proceeding from which Paraguay was unlawfully excluded

could preclude Paraguay from asserting its right to assist in

such proceedings, the District Court engaged in circular

reasoning that finds no support in the authority on which it

relied. The state court judgment is the event which gives rise

to Paraguay's claim. It cannot at the same time pose a bar to

that claim.

CONCLUSION

The District Court's order should be reversed and

this action should be remanded for further proceedings.

Dated: March 4, 1997

DeBEVOISE & PLIMPTON

By: Donald \ Francs Donovan

Donald Francis Donovan

Barton Legum

Michael M. Ostrove

Alexander A. Yanos

875 Third Avenue

New York, New York 10022

(212) 909-6000

Loren Kieve

Depevoise & PLIMPTON

555 13th Sweet, N.W.

Washington, D.C. 20004

(202) 383-8000

Associate Professor Leslie M. Kelleher

T.C. Williams School of Law

University of Richmond

Richmond, Virginia 23173

(804) 289-8359

Professor Rodney A. Smolia

Professor Linda A. Malone

Marshall-Wythe School of Law

College of William and Mary

“South Henry Street

P.O. Box 8795

Williamsburg, Virginia 23187

(804) 221-3800

ADDENDUM REPRODUCING FEDERAL AUTHORITY

TREATIES

Vienna Convention on Consular Relations,

Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261

*“**

Article 36

Communication and contact with nationals

of the sending State

1. With a view to facilitating the exercise of consular

functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate

with nationals of the sending State and to have

access to them. Nationals of the sending State

shall have the same freedom with respect to

communication with and access to consular

officers of the sending State;

(b) if he so requests, the competent authorities of

the receiving State shall, without delay, inform

the consular post of the sending State if, within

its consular district, a national of that state is

arrested or committed to prison or to custody

pending trial or is detained in any other manner.

Any communication addressed to the consular

A-1

post by the person arrested, in prison, custody

or detention shall also be forwarded by the said

authorities without delay. The said authorities

shall inform the person concerned without delay

of his rights under this sub-paragraph;

national of the sending State who is in prison,

custody or detention, to converse and

correspond with him and to arrange for his legal

representation. They shall also have the right to

visit any national of the sending State who is in

prison, custody or detention in their district in

pursuance of a judgment. Nevertheless,

consular officers shaii refrain from taking action

on behalf of a national who is in prison, custody

or detention if he expressly opposes such action.

2. The rights referred to in paragraph | of this Article

shall be exercised in conformity with the laws and regulations

of the receiving State, subject to the proviso, however, that the

said laws and regulations must enable full effect to be given to

the purposes for which the rights accorded under this Article

are intended.

Treaty of Friendship, Commerce, and Navigation,

Feb. 4, 1859, U.S.-Para., 12 Stat. 1091

Article Xi

The diplomatic agents and consuls of the United States

of America in the territories of the Republic of Paraguay shall

enjoy whatever privileges, exemptions, and immunities are or

may be there granted to the diplomatic agents and consuls of

any other nation whatever; and, in like manner, the diplomatic

agents and consuls of the Republic of Paraguay in the United

States of America shall enjoy whatever privileges, exemptions,

and immunities are or may be there granted to agents of any

other nation whatever.

Consular Convention, June 6, 1951, U.S.-U.K.,

3 U.S.T. 3426

*“*

Anicle 16

(1) A consular officer shall be informed

immediately by the appropriate authorities of the territory when

A-3

any national of the sending state is confined in prison awaiting

trial or is otherwise detained in custody within his district. A

consular officer shall be permitied to visit without delay, to

converse privately with and to arrange legal representation for,

any national of the sending state who is so confined or

detained. Any communication from such a national to the

consular officer shall be forwarded without delay by the

authorities of the territory.

Consular Convention, June 1, 1964, U.S.-U.S.S.R.,

19 U.S.T. 5018

eee

Article 12

eee

2. The appropriate authorities of the receiving state

shall immediately inform a consular officer of the sending state

about the arrest or detention in other form of a national of the

sending state.

3. A consular officer of the sending state shall have

the right without delay to visit and communicate with a

national of the sending state who is under arrest or otherwise

detained in custody or is serving a sentence of imprisonment.

The rights referred to in this paragraph shall be exercised in

conformity with the laws and regulations of the receiving state,

A-4

———_——_— +

subject to the proviso, however, that the said laws and

regulations must not nullify these rights.

PROTOCOL

To the Consular Convention Between the —

Government of the United States of America and the

Government of the Union of Soviet Socialist Republics

1. It is agreed between the Contracting Parties that

the notification of a consular officer of the arrest or detention

in other form of a national of the sending state specified in

paragraph 2 of Article 12 of the Consular Convention between

the Government of the United States of America and the

Government of the Union of Soviet Socialist Republics of June

1, 1964, shall take place within one to three days from the time

of arrest or detention depending on conditions of

communication.

2. It is agreed between the Contracting Parties that

the rights specified in paragraph 3 of Article 12 of the

Consular Convention of a consular officer to visit and

communicate with a national of the sending state who is under

arrest or otherwise detained in custody shall be accorded within

two to four days of the arrest or deténtion of such national

depending upon his location.

A-5

Agreement on Consular Relations, Jan. 31, 1979, U.S.-

China,

30 U.S.T. 17

**. *

5. If a citizen of the sending country is arrested or

detained in any manner, the authorities of the receiving country

shall, without delay, notify the consular post or embassy

accordingly of the arrest or detention of the person and permit

access by a consular officer of the sending state to the citizen

who is under arrest or detained in custody.

STATUTES

42 U.S.C. § 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress, except that in

any action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity, injunctive

relief shall not be granted unless a declaratory decree was

A-6

violated or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to

be a statute of the District of Columbia.

42 U.S.C.A. § 1983 (West 1988), as amended by Federal

Courts Improvement Act of 1996, Pub. L. No. 104-317, 110

Stat. 3847 (WESTLAW through all 1996 legislation).

A-7

CERTIFICATE OF SERVICE

1, Daniel C. Malone, a law clerk with

Debevoise & Plimpton, attorneys for plaintiffs-appellants the

Republic of Paraguay, Ambassador Jorge J. Prieto and Consul

General José Antonio Dos Santos, hereby certify under penalty

of perjury that | have, this 4th day of March, 1997, caused

eight copies of the foregoing Plaintiffs'-Appellants’ Brief,

together with six copies of the Joint Appendix, to be filed by

first class mail with the Clerk of Court and caused two copies

of said brief and one copy of said appendix to be served by

first class mail on each of the following:

Donald R. Curry, Esq.

Senior Assistam Attorney General

Office of the Attorney General

900 East Main Street

Richmond, Virginia 23219

Ara L. Tramblian, Esq.

Deputy County Attorney

Office of the County Attorney

#1 Courthouse Plaza, Suite 403

2100 Claredon Boulevard

Arlington, Virginia 22201

Dated: March 4, 1997

Glen

Daniel C. Malone

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2770

REPUBLIC OF PARAGUAY, et al.,

Appellants

GEORGE ALLEN, GOVERNOR OF VIRGINIA, et al.,

Appellees

On Appeal from the United States District

Court for the Eastern District of Virginia

Richmond Division

APPELLEES’ BRIEF

Arlington, Virginia 22201

(703) 358-3100

TABLE OF CONTENTS

Page

DD. gcc cnc eesesvecee bees edewetecoeuserersegs l

STATHOGINT OF THB CAGE .. ww ccc cc creer scree eseseeeeee 2

STATEMENT OF FACTS . 2... ccc ccc tee eee cera eerercnens 3

SUMMARY OF THE ARGUMENT ...... 26-5 eee cee eee eee ees 8

OE. og cack cndee US 0 eee bb UD OTR ESSE SEEN CSOHH SCHR SEES 9

THE DISTRICT COURT CORRECTLY CONCLUDED THAT IT DID

NOT HAVE JURISDICTION TO GRANT THE RELIEF REQUESTED

BY THE PLAINTIFFS ... 0... ccc ccc eee eee wenn ncenes 9

A The Eleventh Amendment ..... . .- eee eee renee ees 9

l Ex Pare Young ....---- ee eee eee ee eres 10

2 No "Continuing Violation” .....--.----5+esee85 12

B The "Feldman" Doctrine... . - . se eee eee eens 14

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E Non-Justiciable “Political Question” .......---+-+++eee> 21

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Other Authority

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(a)

(b)

ADDENDUM REPRODUCING FEDERAL AUTHORITY

TREATIES

Vienna Convention on Consular Relations,

Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261

Article 36

Communication and contact with nationals

of the sending State

1. With a view to facilitating the exercise of consular

functions relating to nationals of the sending State:

consular officers shall be free to communicate

with nationals of the sending State and to have

access to them. Nationals of the sending State

shall have the same freedom with respect to

communication with and access to consular

officers of the sending State;

if he so requests, the competent authorities of

the receiving State shall, without delay, inform

the consular post of the sending State if, within

its consular district, a national of that state is

arrested or committed to prison or to custody

pending trial or is detained in any other manner.

Any communication addressed to the consular

A-l

post by the person arrested, in prison, custody

or detention shall also be forwarded by the said

authorities without delay. The said authorities

shall inform the person concerned without delay

of his rights under this sub-paragraph;

national of the sending State who is in prison,

custody or detention, to converse and

correspond with him and to arrange for his legal

representation. They shall also have the right to

visit any national of the sending State who is in

prison, custody or detention in their district in

pursuance of a judgment. Nevertheless,

consular officers shall refrain from taking action

on behalf of a national who is in prison, custody

or detention if he expressly opposes such action.

2. The rights referred to in paragraph | of this Article

shall be exercised in conformity with the laws and regulations

of the receiving State, subject to the proviso, however, that the

said laws and regulations must enable full effect to be given to

the purposes for which the rights accorded under this Article

are intended.

Treaty of Friendship, Commerce, and Navigation,

Feb. 4, 1859, U.S.-Para., 12 Stat. 1091

Anticle XII

The diplomatic agents and consuls of the United States

of America in the territories of the Republic of Paraguay shall

enjoy whatever privileges, exemptions, and immunities are or

may be there granted to the diplomatic agents and consuls of

any other nation whatever; and, in like manner, the diplomatic

agents and consuls of the Republic of Paraguay in the United

States of America shall enjoy whatever privileges, exemptions,

and immunities are or may be there granted to agents of any

other nation whatever.

Consular Convention, June 6, 1951, U.S.-U.K.,

3 U.S.T. 3426

*“**.

Aniicle 16

(1) A consular officer shall be informed

immediately by the appropriate authorities of the territory when

A-3

any national of the sending state is confined in prison awaiting

trial or is otherwise detained in custody within his district. A

consular officer shall be permitied to visit without delay, to

converse privately with and to arrange legal representation for,

any national of the sending state who is so confined or

detained. Any communication from such a national to the

consular officer shall be forwarded without delay by the

authorities of the territory.

Consular Convention, June 1, 1964, U.S.-U.S.S.R.,

19 U.S.T. 5018

++.

Article 12

a The appropriate authorities of the receiving state

shall immediately inform a consular officer of the sending state

about the arrest or detention in other form of a national of the

sending state.

3. A consular officer of the sending state shall have

the right without delay to visit and communicate with a

national of the sending state who is under arrest or otherwise

detained in custody or is serving a sentence of

The rights referred to in this paragraph shall be exercised in

conformity with the laws and regulations of the receiving state,

A-4

eee ee ees

subject to the proviso, however, that the said laws and

regulations must not nullify these rights.

PROTOCOL

To the Consular Convention Between the

Government of the United States of America and the

Government of the Union of Soviet Socialist Republics

1. It is agreed between the Contracting Parties that

the notification of a consular officer of the arrest or detention

in other form of a national of the sending state specified in

paragraph 2 of Article 12 of the Consular Convention between

the Government of the United States of America and the

Government of the Union of Soviet Socialist Republics of June

1, 1964, shall take place within one to three days from the time

of arrest or detention depending on conditions of

communication.

2. it is agreed between the Contracting Parties that

the rights specified in paragraph 3 of Article 12 of the

Consular Convention of a consular officer to visit and

communicate with a national of the sending state who is under

arrest or otherwise detained in custody shall be accorded within

two to four days of the arrest or detention of such national

depen ting upon his location.

A-5

Agreement on Consular Relations, Jan. 31, 1979, U.S.-

China,

3 U.S.T. 17

S. If a citizen of the sending country is arrested or

detained in any manner, the authorities of the receiving country

shall, without delay, notify the consular post or embassy

accordingly of the arrest or detention of the person and permit

access by a consular officer of the sending state to the citizen

who is under arrest or detained in custody.

STATUTES

42 U.S.C. § 1983

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress, except that in

any action brought against a judicial officer for an act or

omission taken in such officer's judicial capacity, injunctive

relief shall not be granted unless a declaratory decree was

A-6

violated or declaratory relief was unavailable. For the

purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to

be a siatute of the District of Columbia.

42 U.S.C.A. § 1983 (West 1988), as amended by Federal

Courts Improvement Act of 1996, Pub. L. No. 104-317, 110

Stat. 3847 (WESTLAW through all 1996 legislation).

CERTIFICATE OF SERVICE

i, Daniel C. Malone, a law clerk with

Debevoise & Plimpton, atiorneys for plaintiffs-appellants the

Republic of Paraguay, Ambassador Jorge J. Prieto and Consul

General José Antonio Dos Santos, hereby certify under penalty

of perjury that | have, this 4th day of March, 1997, caused

eight copies of the foregoing Plaintiffs'-Appellants' Brief,

together with six copies of the Joint Appendix, to be filed by

first class mail with the Clerk of Court and caused two copies

of said brief and one copy of said appendix to be served by

first class mail on each of the following:

Donald R. Curry, Esq.

Senior Assistant Attorney General

Office of the Attorney Genera!

900 East Main Street

Richmond, Virginia 23219

Ara L. Tramblian, Esq.

Deputy County Attorney

Office of the County Attorney

#1 Courthouse Plaza, Suite 403

2100 Claredon Boulevard

Arlington, Virginia 22201

Dated: March 4, 1997

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2770

REPUBLIC OF PARAGUAY, et al.,

Appellants

GEORGE ALLEN, GOVERNOR OF VIRGINIA, et al.,

Appellees

On Appeal from the United States District

Court for the Eastern District of Virginia

Richmond Division

APPELLEES’ BRIEF

a JAMES S. GILMORE, II

Attorney General of Virginia

Arlington, Virginia 22201

(703) 358-3100

TABLE OF CONTENTS

Page

SNORT PUUMEITEID 0. ccc wcrc reece eeeseeseseesssvess |

STATEMENT OF THE CASE .......---- eee cee cette eee ee eeeee 2

STATEMENT OF FACTS ........----- eee e eee e settee eeeenee 3

SUMMARY OF THE ARGUMENT ......-- 6 cee eee tenes ®

CE occa dwicnseeee snc es 60 esses bev op es 04660 090s 60% 9

THE DISTRICT COURT CORRECTLY CONCLUDED THAT IT DID

NOT HAVE JURISDICTION TO GRANT THE RELIEF REQUESTED

BY THE PLAINTIFFS .......--- ccc ccccc cree crenccees 9

l Ex Pare Young ...------ see e cee t ere eeeees 10

2 No “Contimuing Violation” .....------+++++ee: 12

B. The “Feldman” Doctrine ........------ eee ee creer: 14

Cc Habeas Corpus as Sole Remedy .....-- +--+ esse eerres 17

D a 19

E Non-Justiciable “Political Question” ......------+++re0% 21

ES. wicca bicictscndcedesivegeoteoaeudsasiconss os 26

CERTIFICATE OF SERVICE ..... 6... cece cece cree re eeerernenee 27

Cases

Page

TN og Ca gr ine so oe ee ee 21

mb Os to nets) ee ie dS EPR are he ay png eat aT 5 oe 18

91S F2d 932 (ath Ci. 1990),

eee GPU, GUN MED on cet ccccccsedecevcoesereiaces 19

a i ew 25

248 Va. 68, 445 S.E.2d 670 (1994)... eee eee eens 3, 5, 6, 19

949 F. Supp. 1255 (E.D. Va. 1996) 0.0... cece cee eee eeee 8

RS se ke ,

115 S.Ct. a _ See HE Be SUMMIT E 4 depos eRe GO Me PRET 7

“$77 F.2d 308 (ath Cir),

cert, denied, 493 U.S. 976 (1989) 0. cee ee eee eee 13

5 gp rena pn 14, 15,1

425 F.2d 1141 (Sth Cir.),

cert, dismissed, 400 U.S. 805 (1970)... 0... ccc ee ee eee 16

cs nD i decease teeel 10-13

75 F.3d 834 (3d Cir.

Foster v. Neilson,

27 U.S. 253 (1829

94 F.2d 597 (2d Cir.

503 U.S. 653 (1992)

DE Dacre SOCdOKO RED COL DOH OREO ODES eo HOO e:

DP hea es oe bales odd hedewee ees oeereerdreres

Gray v. Netherland,

Ne ee ee ceeeweebde ve we ceueees

Green v. Mansour,

474 U.S. 64 (1985

112 U.S. 580 (1884)

Heck v. Humphrey,

sn os « &» awe OeHeePRFre FF lCUO SOUR HRBP Re RS RRR RE RRR AT RR A ES Oe OF CUS.

i yt. & F Freer rrrerererreeerrerreee eee eee eee

NA er bao en a! Sipe i ae ae 14,

re how ceebovawers ‘Ao 14,

McCurry v. Tesch,

Teen ne cee beeeeenebebet ews s

I Td = de

Murphy _v. Commonwealth,

rr i case ree nboessesepecen:

Paraguay v. Allen,

949 F. Supp. 1269 (E.D. Va. 1996)... ee eee 3, 12, 13.

Pennhurst State School & Hospital v. Halderman,

465 U.S. 89 (1984)

ee ee ee nn ee ae ne ee ee eo ewe ee eee ee ee Ce ee ee ee ese Se

DD . «sbcescewiweseesbaetsebenus 4 ete eeekees 20 EET On eee DENTIN Rea ee BY eatin cceak ag 16

Whitmore v. Arkansas,

411 U.S. 475 (1973) 2.6 ee eee eee eens 17 SE SO A ee em Port ey ae” 20

ert: — Sin: : |

SIE OB. BED GBD ccc ccccc ccs rcnccecccccevecsesesecccens 10 Sn di ol Pr a in ae oad ae oe eae 18

Quer v. Jordan,

440 U.S. 332 (1979) CCC HOHSHCESOHROS OSES ROKHCOHSSEHSOSCHCHESCHOE CMEC OBES 10 Statutes

Roe v. Alabama, Ne eee Oy aL Nk wee eee ee een bee 2

ee Nn eee aden eee beer eneeee waxes 16

ne eS 1502 Vr A) A Pah eer ei ee aid at ane egies gan, fe)

263 U.S. 413 (1923)... ccc cee ecw e reece renee seeseseseees 14 I I, <i ns ae N e e ee ae 8, 11, 13, 20

Sale v. Haitian Centers Council, Inc., I ae i ee a cons Pu iad adh = bad wb kee e re 2,17

i ne hus oe eee ema eeenbee bear encee 2

i os we ou kes eden cues oben newer 5

Schneid Colegio de Abogados de P Ri

917 F.2d 620 (1st Cir. 1990), So on eae a Ue e eek ees Obese eee neous 5

er re Pe vc cadeereheveseensheees ates oe 16

Seminole Tribe of Florida v. Florid

ee ee cab aveenebererrs 10, 11, 13 Oster Amimacky

Luke T. Lee,

Consular Law and Practice (2d ed. 1991)... 2... eee eee ee ee ee eee 26

ne nn ee ea deN Va ke ee een bea ae bee ons 21

Spencer v. Murray,

5 F.3d 758 (4th Cir. 1993),

re ee CM ., strc ewes aseereserbsvades¥.eus 9

Tabion v. Mufti,

Ce lb rete p hanes Games 24

Thomas S. v. Flaherty,

902 F.2d 250 (4th Cir.),

cere, denied. 496 U.S. 951 (1990)... ccc cer c reece creer ceverene 13 "

U * is Alv oe z-M. ! .

i 2 Cine 8 oo oe eee eee eee eee os 22

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-2770

REPUBLIC OF PARAGUAY, et al.,

Appellants

GEORGE ALLEN, GOVERNOR OF VIRGINIA, et al.,

Appeilees

On Appeal from the United States District

Court for the Eastern District of Virginia

Richmond Division

APPELLEES’ BRIEF

Did the district court correctly rule that, outside the limited

parameters of a proceeding under 28 U.S.C. § 2254, the lower

federal courts have no jurisdiction to review the validity of a state

prisoner’s conviction or sentence, or to declare that a state court

criminal judgment is unenforceable?

STATEMENT OF THE CASE

This is a case in which the Republic of Paraguay and two of its officials attempted to

come to the aid of an admitted capital murderer, Virginia death row prisoner Ange! Francisco

Breard.* In August of 1996, Breard filed a habeas covpus petition in the United States District

Court for the Eastern District of Virginia. One of Breard’s many claims, but one upon which

he placed primary emphasis, was an allegation that both his capital murder conviction and death

sentence were unconstitutional because, at the time of his arrest, the Virginia authorities failed

to advise him that, pursuant to the Vienna Convention on Consular Relations (“Vienna

Convention"), he had the right to contact the Paraguayan consulate. Because Bread never had

raised his claim in state court, however, it was obvious from the outset of his federal habeas

proceedings that, at the very least, he faced severe procedural obstacles to obtaining collateral

relief upon such a claim.

It was at this point that the plaintiffs amempted to come two Breard’s rescue. On

September 12, 1996, they filed the instant action under 28 U.S.C. § 133i and 42 U.S.C. § 1983

in the same federal district court where Breard’s habeas petition was pending. Paraguay and its

two officials asked the district court to declare that all the named defendants—from Governor

Allen to the Chief of Police in Arlington County—had violated, not only the Vienna Convention,

but also the Friendship, Commerce and Navigation ("FCN") Treaty of 1859. This would have

been remarkable, by itself, but the plaintiffs did not stop there. From the outset of the litigation,

up to and including the oral argument that the district court heard on November 26, 1996, they

consistently made clear that the only possible remedy for the alleged violations was for the

court to declare Breard’s capital murder conviction and death sentence void and to enjoin the

defendants from taking any steps to carry out the conviction or sentence.

On November 27, 1996, the district court determined that it did not have jurisdiction to

grant the relief requested by the plaintiffs. Paraguay v. Allen, 949 F. Supp. 1269 (E.D. Va.

1996). (App. 116-118, 123). On that same date, the district court also dismissed Breard’s

habeas petition, after specifically finding that his “Vienna Convention" claim was barred from

federal collateral review by his failure to raise it in state court. Breard v. Netherland, 949 F.

Supp. 1255, 1263 (E.D. Va. 1996).

The plaintiffs filed their notice of appeal in the district court on December 5, 1996.

(App. 5).

The Virginia Supreme Court found the facts surrounding Breard’s capital offense to be

as follows:

STATEMENT OF FACTS

In February 1992, the victim, Ruth Dickie, resided alone at 4410

North Fourth Road, Apartment 3, in Arlington County. She was

39 years of age and unmarried. Breard was living in an apartmeni

a short distance from Dickie’s apartment.

About 10:00 or 10:15 p.m. on February 17, 1992, Dickie left an

Arlington restaurant. About 10:30 or 10:45 p.m., Ann Isch, who

lived in an apartment directly below Dickie’s, heard Dickie and a

man arguing loudly in the hall. Isch heard Dickie say, "[K]eep

your hands off me." According to Isch, the arguing continued as

she heard Dickie and the man enter Dickie’s apartment. Almost

the apartment complex maintenance man.

Upon receiving Isch’s call, the maintenance man, Joseph King,

went to Dickie’s apartment. King knocked on the apartment door

and heard “something that sounded like something being drug

across the floor. After receiving no response to his knocking,

King called the police.

When tht police arrived, King gave them a master key. Upon

entering the apartment, the police found Dickie lying on the floor.

She was on her back, naked from the waist down, and her legs

to be breathing.

The police observed a “shiny...dried...body fluid" on Dickie’s

pubic hair and on her inner thigh. Hairs were found clutched in

her bloodstained hands and on her left leg. Dickie’s underpants

had been torn from her body. The police found Dickie’s

eyeglasses, without one lens, in the living room, and the missing

lens was found under her body. A telephone receiver located near

her head was covered with blood. In the room where Dickie’s

body was found, the police also found her shoes and her pants

with some buttons missing. Dickie’s purse was on the floor just

inside the front door, and her set of keys was on the floor between

her legs.

An autopsy revealed that Dickie had sustained five stab wounds to

the neck. Two of the wounds would have caused her death.

The body fluid found on Dickie’s pubic hair and inner thigh was

subjected to a serological examination and identified as semen. No

semen was detected on vaginal or anal swabs.

In the course of their investigation, the police obtained a sample

of Breard’s blood and samples of his head and pubic hair. The

hair samples were subjected to microscopic examination, and the

blood sample was subjected to enzyme testing and DNA analysis.

The foreign hairs found on Dickie’s body were determined to be

identical in all microscopic characteristics to the hair samples taken

from Breard. The hairs found clutched in Dickie’s hand were

Caucasian hairs “microscopically like" Dickie’s own head hair and

bore evidence that they had been pulled from her head by the

roots.

The semen found on Dickie’s pubic hair matched Breard’s enzyme

typing in all respects. On all five of the genetic probes used in the

DNA testing, Breard’s DNA profile matched the DNA profile of

the semen found on Dickie’s body.

Breard is a native of Argentina, and his DNA profile occurs in

only one in seventeen million members of the Hispanic population.

Only 1.7% of the general population has Breard’s enzyme typing.

At trial, Breard testified in his own defense. He stated that, on the

night of February 17, 1992, he left his apartment armed with a

knife because he thought he would “try to do someone,” meaning

that he "wanted to use the knife to force a woman to have sex with

fhim].” Breard admitted that he engaged Dickie in conversation

on the street, followed her to her apartment, argued with her, and

forced himself into her apartment. Breard also admutied that he

stabbed Dickie, removed her pants, and got “on top of her.

While he was on Dickie, he heard someone knocking on the door.

He “got scared,” opened a kitchen window, jumped to the ground,

and fled. Breard also testified that, at the time, he believed that

he was under a curse placed upon him by his ex-wife's father.

Breard v. Commonwealth, 248 Va. 68, 72-73, 445 S.E.2d 670, 673-674 (1994).

Breard was arrested in Arlington on August 17, 1992. There is no evidence that he was

advised by the arresting authorities that he could contact the consulate of a foreign country; nor

is there any evidence that he sought to make such contact but was denied. It is undisputed,

however, that the state court promptly appointed two atlorneys to represent Breard and that those

attorneys were free to contact whomever they saw fit. .

On June 24, 1993, after a 3% day trial, a jury in the Circuit Court of Arlington County

convicted Breard of capital murder and attempted rape. The jury fixed Breard’s punishment for

the attempted rape at 10 years imprisonment and a fine of $100,000.

The trial court conducted a separate sentencing proceeding on June 24-25, 1993. After

considering all the evidence in aggravation and mitigation, the jury sentenced Breard to death

for the capital offense, finding that he represented a continuing serious threat to society and that

his offense was outrageously or wantonly vile, horrible or inhuman i that it involved torture,

depravity of mind or aggravated battery to the victim. See Va. Code § 19.2-264.4.

The trial judge conducted yet another sentencing proceeding on September 9, 1993, at

which the court considered additional evidence introduced on Breard’s behalf. At the conclusion

of that hearing, however, the court imposed final judgment in accordance with the jury's

verdicts. At no time in the trial court did Breard raise claims regarding alleged treaty violations

or the authorities’ alleged failure to advise him at the time of his arrest that he could contact a

foreign consulate. rs;

Breard’s convictions and sentences were affirmed by the Supreme Court of Virginia on

June 10, 1994. Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670 (1994). With respect

to the evidence warranting the death penalty, the Court found as follows:

Breard’s automobile, to Breard’s Arlington apartment.

Price began screaming for help, and Breard responded by hitting

A man im a nearby apartment heard Price’s screams and called the

hysterical, and Breard clad only im his undershorts. Breard was

arrested ‘and, at that time, became a suspect in Dickie’s murder.

Breard, 248 Va. at 85, 445 S.E.2d at 680. In his appeal to the Virginia Supreme Court, Breard

did not claim that any treaties had been violated in his case.

After his appeal to the Virginia Supreme Court, Breard petitioned the United States

Supreme Court for a writ of certiorari. The Supreme Court, however, denied the certiorari

petition on October 31, 1994. Breard v. Virgimia, 115 S.Ct. 442 (1994).

On October 24, 1994, the Circuit Court of Arlington Country appointed new counsel to

represent Breard in his state habeas corpus proceedings. Breard filed his state petition on May

1, 1995. The petition raised no claim regarding any alleged treaty violations. The Circuit Court

dismissed the petition on June 29, 1995. Breard subsequently filed a motion to reconsider which

the state court denied on July 24, 1995.

Breard then filed a petition for appeal in the Virginia Supreme Court on September 28,

1995. On October 11, 1995, however, the Virginia Supreme Court granted Breard’s request to

file an amended petition for appeal, which Breard filed October 30, 1995. Once again, Breard

raised no claim that any treaties had been violated in his case. The Virginia Supreme Court

refused the amended petition for appeal on January 17, 1996. Breard’s petition for rehearing

was denied on March 1, 1996.

On April 29, 1996, the district court granted Breard’s request for a stay of execution and

on May 2, 1996, appointed counsel to represent Breard in his federal habeas proceedings.

Breard subsequently filed a 71-page habeas petition on August 30, 1996. In that petition, Breard

for the first time claimed that his conviction and sentence should be overturned because of an

alleged violation of the Vienna Convention. After hearing oral argument on the respondent-

Warden's motion to dismiss, the district court dismissed Breard’s petition on November 27,

1996. Breard v. Netherland, 949 F. Supp. 1255 (E.D. Va. 1996). As previously noted, the

court specifically found that Breard’s "Vienna Convention” claim was procedurally defaulted by

his failure to raise it in state court. Jd. at 1263.

Breard’s appeal from the district court’s denial of federal habeas relief is pending in this

Court. See Breard v. Netherland, No. 96-25.

SUMMARY OF THE ARGUMENT

that can remedy the wrong they allegedly have suffered is for the federal courts to invalidate and

declare unenforceable Ange! Breard’s capital murder conviction and death sentence. The law

is quite clear, however, that neither the district court nor this Court may grant such relief,

except in the context of Breard’s pending habeas corpus proceedings under 28 U.S.C. § 2254.

The Eleventh Amendment of the Constitution and the Supreme Court’s “Feldman” doctrine

prohibit a lower federal court from directly reviewing or invalidating the judgment of a state

court. State court criminal judgments may be reviewed by a lower federal court collaterally,

but only within the limited parameters of a § 2254 proceeding.

Breard’s treaty-based habeas claim undoubtedly is procedurally barred by his failure to

have raised the claim im state court, and the district court so found in Breard’s § 2254

proceeding. The plaintiffs cannot be permitted to obtain for Breard through the back door of

the federal courthouse the very same relief that Breard is prohibited from obtaining through the

front door.

When one party to a treaty has a complaint against another party, moreover, the

controversy falls squarely within the “political question" doctrine. Such inherently political

issues are not justiciable by the federal courts.

This Court, therefore, should affirm the district court’s dismissal of the plaintiffs’ suit.

Ten of the eleven named defendants’ sole connection to the case is their sworn duty as Virginia

public officials to carry out Breard’s conviction and sentence unless or until a court of competent

jurisdiction overturns those judgments. That, however, is a judicial remedy unavailable in this

of Arlington County, is a local official who has no role or authority in carrying out Breard’s

plaintiffs have specified is indispensable to its suit.

ARGUMENT

THE DISTRICT COURT CORRECTLY CONCLUDED THAT

IT DID NOT HAVE JURISDICTION TO GRANT THE

RELIEF REQUESTED BY THE PLAINTIFFS. '

A. The Eleventh Amendment

The Eleventh Amendment of the United States Constitution is remarkably short and

unequivocal: “The judicial power of the United States shall not be construed to extend to any

' In the district court, the plaintiffs premised the subject matter jurisdiction of their suit

solely upon 28 U.S.C. § 1331. (App. 8). On appeal, they rely not only upon § 1331, but §

1332(a)(4) as well. (Pl. Br. 1). Because § 1332(a)(4) was not asserted in the district court, it

cannot be asserted for the first time on appeal. See generally Spencer v. Murray, 5 F.3d 758,

762 (4th Cir. 1993), cert. denied, 510 U.S. 1171 (1994); McGowan v. Gillenwater, 429 F.2d

586, 587 (4th Cir. 1970) (per curiam). In any event, § 1332(a)(4) clearly does not apply here

because the plaintiffs’ suit does not — and could not — request money damages (see below at 18

n.5) and the jurisdictional stamte requires that "the matter in controversy exceeds the sum or

value of $50,000."

suit in law or equity, commenced or prosecuted against one of the United States by citizens of

another state, or by citizens or subjects of any foreign state.” The Supreme Court consistently

has held “that the Eleventh Amendment bar{s] a suit brought against a State by a foreign state."

Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1129 (1996), citing Principality of

Monaco v. Mississippi, 292 U.S. 313 (1934).

It is, therefore, beyond question that, if the plaintiffs had named the Commonwealth of

Virginia as the defendant in their suit, the Eleventh Amendment would have interposed an

absolute bar. The plaintiffs contend, however, that it successfully has circumvented that bar by

naming various Virginia officials as the defendants, and that Ex parte Young, 209 U.S. 128

(1908), authorizes the suit because they merely are seeking “prospective” relief for what they

consider to be Virginia's "contimuing violation" of the treaties. (Pl. Br. 2, 10-20). The district

court correctly rejected this argument for several reasons:

1. Ex Parte Young

As the Supreme Court recently noted in Seminole Tribe, since Ex parte Young was

decided, the Court often has “found federal jurisdiction over a suit against a state official when

that suit seeks only prospective injunctive relief in order to ‘end a continuing violation of federal

law." Seminole Tribe, 116 S.Ct. at 1132, quoting Green v. Mansour, 474 U.S. 64, 68 (1985).

Under Ex parte Young, "a federal court, consistent with the Eleventh Amendment, may enjoin

state officials to conform their future conduct to the requirements of federal law." Quem y.

Jordan, 440 U.S. 332, 337 (1979) (emphasis added). By definition, then, Ex parte Young does

not apply “to claims for retrospective relief.” Green, 474 U.S. at 68.

That aspect of the plaintiffs’ suit that asked the district court in 1996 to invalidate

eee yer ey Se. fm

Breard’s 1993 state court conviction and sentence (App. 25) clearly was a request for

retrospective, rather than prospective, relief and, therefore, did not fall within the ambit of Ex

parte Young. That the suit was retrospective, at least in part, also is demonstrated by one of

the plaintiffs’ request for a "reinstating [of] the stams quo as of the time [the] plaintiffs rights

were violated.” (App. 7).

Seminole Tribe, moreover, makes clear that, even if the relief sought is deemed to be

“prospective,” the broader remedies under Ex parte Young are unavailable if Congress has

created a limited remedial scheme by statute. Seminole Tribe, 116 S.Ct. at 1132-1133. As will

be demonstrated below, Congress has made it abundantly clear that the “limited remedial

scheme" embodied in § 2254 proceedings is the exclusive federal forum for litigating the validity

of a state prisoner’s conviction or sentence. (See below at 17-19).

Ex parte Young also is inapplicable in a case such as this where the State is the “real,

substantial party in interest." Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,

101 (1984). It would be difficult to imagine a case in which the State is more the “real,

substantial party in interest" than a federal civil suit where the indispensable relief sought by the

plaintiffs is the overturning of the State’s presumptively valid criminal judgment against a death

row prisoner. Indeed, all but one of the named defendants have no connection to the plaintiffs’

suit other than their sworn duty as Virginia public officials to carry out the State’s judgment

unless or until that judgment is overturned by a court of competent jurisdiction. On the othe:

hand, the one other named defendani, the currently Acting Police Chief of Arlington County,

is a local official who has no connection to the relief sought by the plaintiffs. While Ex parte

Young and Congress’ specific authorization of § 2254 proceedings allow federal courts «

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.