# Amicus Curiae Brief — Medellin v. Dretke

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0112%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 660

## Text

a [Serre tan Ts —
(24) | a SS
oe | FEB 28 2005 |

No. 04-5928 | OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
o

JOSE ERNESTO MEDELLIN.
Petitioner,

Ve

DOUG DRETKE, DIRECTOR, ETC.,
Respondent.

+

On Writ of Certiorari to the
United States Court of Appeals for the Fifth Circuit

+

BRIEF FOR THE STATES OF ALABAMA,
ARIZONA, CALIFORNIA, COLORADO,
DELAWARE, FLORIDA, GEORGIA, IDAHO,
INDIANA, KANSAS, MISSISSIPPI, MISSOURI,
MONTANA, OHIO, OKLAHOMA, PENNSYLVANIA,
SOUTH CAROLINA, TENNESSEE, UTAH,
AND VIRGINIA, AS AMICI CURIAE,

IN SUPPORT OF RESPONDENT
e

TROY KING
Attorney General

J. CLAYTON CRENSHAW
CHARLES B. CAMPBELL*
Assistant Attorneys General
Counsel of Record*

OFFICE OF THE ATTORNEY GENERAL
11 South Union Street
Montgomery, Alabama 36130-0152
(334) 242-7300; (334) 353-3198*

Counsel for the State of Alabama
Additional Counsel Listed Overleaf

[BEST AVAILABLE COPY

Additional Counsel for Amici Curiae -

TERRY GODDARD
ATTORNEY GENERAL
STATE OF ARIZONA

1275 W. Washington St.
Phoenix, AZ 85007

BILL LOCKYER
ATTORNEY GENERAL
STATE OF CALIFORNIA
1300 I St., Suite 1740
Sacramento, CA 95814

JOHN W. SUTHERS
ATTORNEY GENERAL
STATE OF COLORADO
1525 Sherman Street
7th Floor

Denver, CO 80203

M. JANE BRADY
ATTORNEY GENERAL
STATE OF DELAWARE
Department of Justice
820 N. French St.
Wilmington, DE 19801

CHARLES J. CRIST, JR.
ATTORNEY GENERAL

STATE OF FLORIDA

The Capitol, PL 01
Tallahassee, FL 32399-1050

THURBERT E. BAKER
ATTORNEY GENERAL
STATE OF GEORGIA
40 Capitol Sq., S.W.
Atlanta, GA 30334

LAWRENCE G. WASDEN
ATTORNEY GENERAL
STATE OF IDAHO

P.O. Box 83720

Boise, ID 83720-0010

~~

STEVE CARTER
ATTORNEY GENERAL
STATE OF INDIANA

302 W. Washington St.
IGCS — 5th Floor
Indianapolis, IN 46204

PHILL KLINE

ATTORNEY GENERAL
STATE OF KANSAS

120 S.W. 10th Avenue
Topeka, KS 66612-1597

Jim Hoop

ATTORNEY GENERAL
STATE OF MISSISSIPPI
P.O. Box 220
Jackson, MS 39205

JEREMIAH W. (JAY) NIXON
ATTORNEY GENERAL
STATE OF MISSOURI

207 West High Street
Jefferson City, MO 65101

MIKE MCGRATH
ATTORNEY GENERAL
STATE OF MONTANA

P.O. Box 201401
Helena, MT 59620-1401

JIM PETRO

ATTORNEY GENERAL

STATE OF OHIO

State Office Tower

30 E. Broad St.

Columbus, OH 43215-3428

W.A. DREW EDMONDSON
ATTORNEY GENERAL

STATE OF OKLAHOMA

2300 N. Lincoln Boulevard
Suite 112

Oklahoma City, OK 73105-4894

THOMAS W. CORBETT
ATTORNEY GENERAL
COMMONWEALTH OF
PENNSYLVANIA

16th Floor, Strawberry Square
Harrisburg, PA 17120

HENRY D. MCMASTER
ATTORNEY GENERAL
STATE OF SOUTH CAROLINA
P.O. Box 11549
Columbia, SC 29211

PAUL G. SUMMERS
ATTORNEY GENERAL
STATE OF TENNESSEE

P.O. Box 20207
Nashville, TN 37202-0207

MARK L. SHURTLEFF

ATTORNEY GENERAL

STATE OF UTAH

Utah State Capitol Complex
East Office Bldg., Suite 320
Salt Lake City, UT 84114-2320

JUDITH WILLIAMS JAGDMANN
ATTORNEY GENERAL
COMMONWEALTH OF VIRGINIA
900 East Main Street
Richmond, VA 23219

i
QUESTIONS PRESENTED
CAPITAL CASE

1. In a case brought by a Mexican national whose
rights were adjudicated in the Avena Judgment, must a
court in the United States apply as the rule of decision,
notwithstanding any inconsistent United States prece-
dent, the Avena holding that the United States courts
must review and reconsider the national’s conviction and
sentence, without resort to procedural default doctrines?

2. In a case brought by a foreign national of a State
party to the Vienna Convention, should a court in the
United States give effect to the LaGrand and Avena
Judgments as a matter of international judicial comity
and in the interest of uniform treaty interpretation?

ii
TABLE OF CONTENTS
SI PCIE iccctinctestniterscniicbilncrinanceniiannmnieatinians i
ee i iiiiniotctcitsnrssciinssivuitiiianiciinitatisiamnicnionmniiaed ill
RE Er EE GR ccc tcneninepineinantivntionnnnennieitnintiiaiiniii 1
I A I iccccitnncsteninniniirenisibaacsniaiabastiananiaiaingiia 2
Argument............ ESS REN ROPE le MCN Si ren one 4

I. Article 36 of the Vienna Convention Is Subject to
the Subsequently Enacted Provisions of the Anti-
terrorism and Effective Death Penalty Act of 1996.....4

II. Although the Vienna Convention May Be Self-
Executing, Judgments of the International Court

OE RE FI eh sicidveevitenoniecctiecenidadpeniciiennniataditapatene 8
A. Judgments of the International Court of Jus-
tice Are Not Self-Executing. .................c:.0:0se0sseeeeeees 8

B. Treating Judgments of the International Court
of Justice as Non-Self-Executing Avoids Seri-
ous Constitutional Questions. .........................0006. 14

III. This Court Should Defer to the Political Branches
To Decide How To Comply with the Judgments in
I a ii le 17

TESS A De PRAT OL ei te ke PASE EAE eG 19

iii
TABLE OF AUTHORITIES
Cases

Federal Cases

Alden v. Maine,

a cainnentpatiaeseaeliie 16
Anastasoff v. United States,

223 F.3d 898 (8th Cir.),

vacated as moot, 235 F.3d 1054 (8th Cir. 2000)......... 15
Breard v. Greene,

ff Sf ERENCES eee rer nenes 5, 8, 16
Chicago & Southern Air Lines v. Waterman S.S.

I Te ele ee OD etecierccncnpestatstcenetinencsnscinnecies 17
Committee of U.S. Citizens Living in Nicaragua v.

Reagan, 859 F.2d 929 (D.C. Cir. 1988)................... 9,11
Commodity Futures Trading Commission v. Schor,

A I II inci sn scalcenehind dsniimgcumiiiinaiadimmanelbiads 14

Fierro v. Cockrell,
294 F.3d 674 (5th Cir. 2002),
cert. denied, 538 U.S. 947 (20038)................cccccesesseeeeeeees 6

Flores v. Southern Peru Copper Corp.,
fs 8 Ts eee ll

Frolova v. USSR,
— be | f.. le S > ee 11

Fuentes v. Benik,
No. 04-C-763-C, 2005 WL 83830
Ff BR RE ee eemeene 6

Hitai v. INS,
343 F.2d 466 (2d Cir.),
cert. denied, 382 U.S. 816 (1965)................cccsesecceeeeeeee 11

iv
LaGrand v. Stewart,

170 F.3d 1158 (Sth Cir. 1999) .....................0c0cccsessseseeses 7
Mason v. Myers,

Be ee Se Ce Ch Fe teicscrscscncnnsecttenceerscncitennemneiens 8
Murphy v. Netherland,

116 F.3d 97 (4th Cir.),

cert. denied, 521 U.S. 1144 (1997).............cccesseccceeesseeess 5
New York v. United States,

gk TE RE ae BRE aR SRC 16

People of Saipan v. U.S. Department of Interior,
502 F.2d 90 (9th Cir. 1974),

cert. denied, 420 U.S. 1003 (1975)..............ccccc00000s 11-12
Printz v. United States,

Ee Gees Se RO ictincsicnacostettsissinndeincstacaddebnidebaepiddaiadaae 16
Reid v. Covert,

Be es We aces tate bideniciteetvedvbadliciiiadpiniaasmeeiibiaail 4
Slack v. McDaniel,

PO ai CI ca 4,5

Spiess v. C. Itoh & Co. (America), Inc.,
643 F.2d 353 (5th Cir. Unit A Apr. 1981),
vacated on other grounds, 457 U.S. 1128 (1982)........ 11

Tel-Oren v. Libyan Arab Republic,
726 F.2d 774 (D.C. Cir. 1984),

cert. denied, 470 U.S. 1003 (1985)................ccccceeeeeeeeee ll
Torres v. Mullin,
git Bf TARE etree ene er ne 9

United States v. Al-Hamdi,
Af OT 10

United States v. Li,
206 F.3d 56 (1st Cir.),
cert. denied, 531 U.S. 956 (2000)...............0.0.-ccceeeeeeeees 10

Villafuerte v. Stewart,
gf fh 4 een 7

Whitney v. Robertson,
EERE PRS oe a 4,8

Williams v. Taylor,
No. CIV.A.02-18-JJF, 2002 WL 1459530

Sn SUIT Tk STII i scncihcinel dhctensihsaieeiedehanbotentiiiaaeasibens 7
Younger v. Harris,
Lk feet ne nr eS eee 16

International Court of Justice Cases
Avena and Other Mexican Nationals (Mex. v. U.S.),

EE IEA UP III, Taine da iniieentiossepnbtcteninectuonbuss passim
LaGrand Case (F.R.G. v. U.S.),

ee ee GF IND WIT D cncnsrencescieconecssceceenocesctces passim
Vienna Convention on Consular Relations (Para. v.

Aa, Rs I cca aneatininsene 15

Constitutional Provisions
eA ee OS Re ee 15
Re RE aE Sapa aes eee Ae aE eo 1

vi
Statutes
Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214......0000000... passim
2B U.S.C. § SB44(D) CROOD)......ccccvccvcscccsssosseecssocees 3, 7, 18
BD TEC. F Oe Cv icscccccceineccavicsineinsnccevesenstinses 7
2B U.S.C. § BAEZ) ROOD) 0... ccscrescoccccsceccccccessecsesosess 8
28 U.S.C. § 2244(b)(2)(A) (2000)... eee eeeeeeeeeeeeeeeeees 7
28 U.S.C. § 2244(b)(2)(B) (2000) ........... eee eeeeeeeeeeeees 7
28 U.S.C. § 2244(d)(1) (2000) ............ ee 3, 6, 7, 18
28 U.S.C. § 2253(c)(2) (2000)...............cccceceeees 2,4, 5, 18
28 U.S.C. § 2254(e)(2) (2000)... eee eee 2,5, 6, 18
Treaties

Optional Protocol to the Vienna Convention on Consu-
lar Relations Concerning the Compulsory Settle-
ment of Disputes, done Apr. 24, 1963, 21 U.S.T.

Ra RRR R RSI Pore eee eae 10
Statute of the International Court of Justice,
June 26, 1945, 59 Stat. 1055, 3 Bevans 1179............. 10

United Nations Charter,
June 26, 1945, 59 Stat. 1031, 3 Bevans 1153....... 11, 12

Vienna Convention on Consular Relations, done
Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261... passim

Rules
Ne I TF eR ED aE 1

vil
Other Authorities

Curtis A. Bradley, International Delegations, the
Structural Constitution, and Non-Self-Execution,
ee NI Sits Ns. UND CIID sacis sanicececadedncvecynincvhenossueas 15

Joshua A. Brook, Federalism and Foreign Affairs:
How To Remedy Violations of the Vienna
Convention and Obey the U.S. Constitution, Too,
37 U. Mich. J.L. Reform 573 (2004)...............0.ccccceeeees 15

U.S. Department of State, Department of State An-
swers to the Questions Posed by the First Circuit in
United States v. Nai Fook Li (Oct. 15, 1999), avail-
able at U.S. Dep’t of State, Digest of United States
Practice in International Law 2000, ch. 2, doc. no.
1, http://www.state.gov/docments/organi za-
ig RR SR a EIS Be Se EERE Ra oe 10

Paige M. Harrison & Jennifer C. Karbert, Bur. of
Justice Statistics, U.S. Dep’t of Justice, Prison and
Jail Inmates at Midyear 2003, Bur. of Justice
Statistics Bull. 5 (May 2004, rev. July 14, 2004),
http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim03.pdf......... 1

Julian G. Ku, The State of New York Does Exist: How
the States Control Compliance with International
Law, 82 N.C. L. Rev. 457 (2004) ..................ccccccccceseees 12

Memorial of Mexico (June 20, 2003), Avena and Other
Mexican Nationals (Mex. v. U.S.), http:// icj-
cij.org/icjwww/idocket/imus/imuspleadings
/imus_ipleadings_20030620_memorial_03.pdf ............ 6

Sandra Day O’Connor, The Federalism of Free
Nations, 28 N.Y.U. J. Int'l L. & Pol’y 35 (1997).......... 14

Viii
David M. Reilly & Sarita Ordonez, Effect of the
Jurisprudence of the International Court of Justice

on National Courts, 28 N.Y.U. J. Int'l L. & Pol'y
I Ct ic:shtcheisnchitapakncs aiatiniiniatiichen nanaiidasotibsamipisianaibdiadians 12

SRR, SRR, Be oe vincctntescinictenisccnscstininanamtiaisanonianie 9

U.S. Dep't of State, Consular Notification and Access:
“Instructions for Federal, State, and Local Law
Enforcement Officials Regarding Foreign
Nationals in the United States and the Rights of
Consular Officials to Assist Them (2003),
http://travel.state.gov/pdf/CNA_book.pdf................... 9

Mark Warren, Foreign Nationals and the Death
Penalty in the United States, http://www.death
penaltyinfo.org/article.php?did=198&scid=31
ES SS ee 1,2

A. Mark Weisburd, Jnternational Courts and
American Courts, 21 Mich. J. Int'l L. 877 (2000) ..15-16

1
INTEREST OF AMICI CURIAE

The States of Alabama, Arizona, California, Colorado,
Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Mis-
sissippi, Missouri, Montana, Ohio, Oklahoma, Pennsyl-
vania, South Carolina, Tennessee, Utah, and Virginia
(“the Amici States”) respectfully submit this brief as amici
curiae in support of Respondent in accordance with Sup.
Ct. R. 39.1. Like the State of Texas, the Amici States all
have foreign nationals (and alleged foreign nationals) in-
carcerated in their state prison systems. Of course, un-
der the Supremacy Clause, U.S. Const. art. VI, cl. 2, the
Amici States are, like Texas, subject to the requirements
of Article 36 of the Vienna Convention on Consular Rela-
tions, done Apr. 24, 1963, 21 U.S.T. 77, 100-01, 596
U.N.T.S. 261, 292-94 (“Vienna Convention,” “Conven-
tion,” or “VCCR”), when their law enforcement officials
arrest foreign nationals.

According to a recent study, over 56,000 noncitizens
were in state prisons in 2003. Paige M. Harrison & Jen-
nifer C. Karbert, Bur. of Justice Statistics, U.S. Dep't of
Justice, Prison and Jail Inmates at Midyear 2003, Bur. of
Justice Statistics Bull. 5 (May 2004, rev. July 14, 2004),
http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim03.pdf. Accord-
ing to one estimate, at least 120 foreign nationals have
been convicted and are sentenced to death in the United
States; of this number, 43 are in California, 27 in Texas,
22 in Florida, 5 in Arizona, 4 each in Nevada and Ohio, 3
in Louisiana, 2 in Pennsylvania, and 1 each in Alabama,
Georgia, Mississippi, Montana, Nebraska, Oklahoma,
Oregon, and Virginia. See Mark Warren, Foreign Nation-
als and the Death Penalty in the United States,
http://www.deathpenaltyinfo.org/article.php?did=198&sci

~

2

d=31 (information as of Nov. 28, 2004) (last visited Feb.
25, 2005).!

In addition, thousands of residents of the Amici States
live and travel abroad, where they may rely on the protec-
tions of the Vienna Convention when dealing with foreign
governments. Accordingly, the Amici States have an in-
terest in the proper interpretation and enforcement of Ar-
ticle 36 in this case and in the light of the judgments of
the International Court of Justice (ICJ) in Avena and
Other Mexican Nationals (Mex. v. U.S.), 2004 IL.CJ. 1
(Mar. 31), and in the LaGrand Case (F.R.G. v. U.S.), 2001
I.C.J. 466 (June 27).

SUMMARY OF ARGUMENT

The Constitution places treaties and federal statutes
on the same footing. Where there is a conflict between a
treaty and a federal statute, the later in time controls.
The relief Petitioner seeks in this action, full “review and
reconsideration” of his conviction and sentence under Ar-
ticle 36(2) of the Vienna Convention as interpreted in
Avena, conflicts with important provisions of the subse-
quently enacted Antiterrorism and Effective Death Pen-
alty Act of 1996 (AEDPA). In this case, Petitioner is not
entitled to a certificate of appealability under 28 U.S.C. §
2253(c)(2) because his Vienna Convention claim involves
only an alleged violation of a treaty right, not a constitu-
tional right.

In other cases, if not this one, however, mandatory
“review and reconsideration” under Article 36(2) would

! According to this list, two alleged foreign nationals in the federal
prison system have also been convicted and sentenced to death. The
list notes incomplete data from seven States and suggests that “[a]
comprehensive list would likely include some 150 names ....” War-
ren, supra.

3

conflict with additional provisions of AEDPA. As this
Court observed in 1998, habeas petitioners generally are
not entitled to an evidentiary hearing under 28 U.S.C. §
2254(e)(2) if they failed to develop the factual basis of a
claim in state court. In some cases, AEDPA’s one-year
statute of limitations, 28 U.S.C. § 2244(d)(1), bars “review
and reconsideration.” In still other cases, a habeas peti-
tion seeking “review and reconsideration” would be barred

as a “second or successive” petition under 28 U.S.C. §
2244(b).

Furthermore, although the Vienna Convention may be
self-executing in the sense that implementing legislation
is not required (at least in most instances), judgments of
the International Court of Justice—even those construing
the Vienna Convention—are not self-executing. This un-
derstanding of ICJ judgments is consistent with the ICJ
Statute, the United Nations Charter, and the decisions in
LaGrand and Avena themselves. Treating judgments of
the ICJ as non-self-executing also avoids serious constitu-
tional questions that would arise from a contrary inter-
pretation.

Because the relief Petitioner seeks conflicts with
AEDPA and because judgments of the ICJ are not self-
executing, the Court should defer to the political branches
to decide how the United States should comply with the
judgment in Avena. Even if this Court were to modify the
procedural default rule as Petitioner requests, that would
not provide him with the relief he seeks, because such re-
lief is independently barred by AEDPA. Given the statu-
tory barriers to relief, it would be best to allow the Execu-
tive Branch and the Congress to address implementation
of the judgment in Avena in the first instance, where all of
the issues raised by that judgment can be considered to-
gether.

4
ARGUMENT

I. ARTICLE 36 OF THE VIENNA CONVENTION IS
SUBJECT TO THE SUBSEQUENTLY ENACTED
PROVISIONS OF THE ANTITERRORISM AND
EFFECTIVE DEATH PENALTY ACT OF 1996.

The relief sought by Petitioner in this case—“review
and reconsideration of his conviction and death sentence
without regard to the procedural default rules imposed by
Texas law,” Pet.’s Br. at 2, under Article 36(2) of the Vi-
enna Convention—conflicts with important provisions of
the subsequently enacted Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. 104-132, 110
Stat. 1214. In Whitney v. Robertson, 124 U.S. 190 (1881),
this Court observed that the Constitution places “a treaty
... on the same footing ... with an act of legislation.
Both are declared by that instrument to be the supreme
iaw of the land, and no superior efficacy is given to either
over the other.” Jd. at 194. The Court went on to hold
that, if a treaty and a federal statute “are inconsistent,
the one last in date will control the other ....” Id. (em-
phasis added). Thus, “an Act of Congress ... is on a full
parity with a treaty, and ... when a statute which is sub-
sequent in time is inconsistent with a treaty, the statute
to the extent of conflict renders the treaty null.” Reid v.
Covert, 354 U.S. 1, 18 (1957) (plurality opinion).

The first conflict between AEDPA and the relief Peti-
tioner seeks is that AEDPA, by its plain terms, does not
authorize the issuance of a certificate of appealability for
alleged violations of treaty rights. Under AEDPA, “[a]
certificate of appealability may issue . . . only if the appli-
cant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2) (2000) (em-
phasis added). Importantly, Congress substituted the
term “constitutional” for the term “federal” in § 2253(c)(2).
This Court took “due note [of] the substitution” in Slack v.

5

McDaniel, 529 U.S. 473, 483 (2000), holding that “[t]o ob-
tain a COA under § 2253(c), a habeas prisoner must make
a substantial showing of the denial of a constitutional
right ....” Jd. at 483-84 (emphasis added). As the
Fourth Circuit has held, Petitioner’s “argument that his
rights under the Vienna Convention were violated does
not satisfy section 2253(c)(2)’s requirement because even
if the Vienna Convention on Consular Relations could be
said to create individual rights (as opposed to setting out
the rights and obligations of signatory nations), it cer-
tainly does not create constitutional rights.” Murphy v.
Netherland, 116 F.3d 97, 99-100 (4th Cir.), cert. denied,
521 U.S. 1144 (1997). Thus, Petitioner is not entitled to
a certificate of appealability under § 2253(c)(2), a neces-
sary prerequisite to a reversal of the district court’s judg-
ment denying his habeas petition and remand to that
court for further proceedings.

The relief Petitioner seeks would also conflict with ad-
ditional provisions of AEDPA in other cases, if not this

one. The Court discussed one of these conflicts in Breard

v. Greene, 523 U.S. 371 (1998) (per curiam). See 28 U.S.C.
§ 2254(e)(2) (2000). Namely, AEDPA “provides that a ha-
beas petitioner alleging that he is held in violation of
‘treaties of the United States’ will, as a general rule, not
be afforded an evidentiary hearing if he ‘has failed to de-
velop the factual basis of [the] claim in State court pro-
ceedings.” Jd. at 376 (quoting 28 U.S.C. § 2254(a) &
(e)(2)). As in Breard, other habeas petitioners’ “ability to

? As the United States noted in Slack, “[s]ome courts of appeals
have suggested that the substitution of ‘constitutional’ for ‘federal’ was
not intended to alter the pre-AEDPA standard,” but “[t]he language of
Section 2253(c)(2) makes that view untenable.” Brief for the United
States as Amicus Curiae at 20 n.11, Slack v. McDaniel, 529 U.S. 473
(2000) (No. 98-6322). “The reference to a ‘constitutional’ right in Sec-
tion 2253(c)(2) requires that the underlying petition for collateral rehef
raise a constitutional claim, rather than a claim based on a federal
statute or treaty... .” Id. at 20.

6

obtain relief based on violations of the Vienna Convention
is subject to this subsequently enacted rule, just as any
claim arising under the United States Constitution would
be.” Id. Most significantly, § 2254(e)(2)

prevents [a habeas petitioner] from establishing
that the violation of his Vienna Convention nights
prejudiced him. Without a hearing, [a petitioner]
cannot establish how the Consul would have ad-
vised him, [or] how the advice of his attorneys dif-
fered from the advice the Consul could have pro-
vided ....

Id.

Another conflict involves AEDPA’s statute of limita-
tions for habeas claims. Under 28 U.S.C. § 2244(d)(1)
(2000), “[a] 1-year statute of limitations shall apply to an
application for a writ of habeas corpus by a person in cus-
tody pursuant to the judgment of a State court.”
AEDPA’s one-year limitations period barred relief in an-
other of the Avena cases, that of César Roberto Fierro
Reyna (Avena case no. 31). See Fierro v. Cockrell, 294
F.3d 674 (5th Cir. 2002), cert. denied, 538 U.S. 947 (2003).
Mexico discussed Fierro’s case at some length in its Me-
morial in Avena, representing the Fifth Circuit’s decision
applying the statute of limitations as another instance of
a Vienna Convention claim being “denied as ‘procedurally
defaulted,’ without any consideration of its merits.” See
Memorial of Mexico 44 4 112 (June 20, 2003), http://icj-cij.
org/icjwww/idocket/imus/imuspleadings/imus_ipleadings_
20030620_memorial_03.pdf. The ICJ concluded that the
United States had breached its obligations under Article
36(2) with respect to Fierro (in addition to breaching Arti-
cle 36(1)(a), (b) & (c)). Avena, supra, {J 114, 153(8).
AEDPA’s statute of limitations has barred relief in other
Vienna Convention cases, as well. See, e.g., Fuentes v.
Benik, No. 04-C-763-C, 2005 WL 83830, at *2-*3 (W.D.

7

Wis. Jan. 3, 2005) (holding Vienna Convention claim un-
timely and alleged recent discovery of claim did not toll
one-year limitations period); Williams v. Taylor, No.
CIV.4.02-18-JJF, 2002 WL 1459530, at *3 (D. Del. July 3,
2002) (holding Vienna Convention claim untimely and
equitable tolling not applicable). A rule requiring recon-
sideration of the conviction and_sentence of foreign na-
tionals in the light of asserted violations of Article 36 of
the Vienna Convention would necessarily require the
statute of limitations in § 2244(d)(1) to be set aside in
many cases.

Finally, the relief Petitioner seeks would, in many
cases, require the filing of a “second or successive habeas
corpus application,” prohibited by 28 U.S.C. § 2244(b)
(2000) except in special circumstances. Section 2244(b)(1)
bars the claims of habeas petitioners who presented con-
sular notification claims in prior habeas proceedings and
lost. The LaGrend Case provides an example of this. In
LaGrand v. Stewart, 170 F.3d 1158, 1161 (9th Cir. 1999),
the Ninth Circuit held that Karl LaGrand’s Vienna Con-
vention claim, which had been presented in a prior ha-
beas petition and held to be procedurally defaulted, was
barred by § 2244(b)(1). The ICJ referred to this decision
in its judgment in LaGrand, 2001 I.C.J. at 478 § 29.

For those habeas petitioners who did not present their
consular notification claims in prior habeas proceedings, a
“second or successive” petition is barred unless: (i) this
Court announces a new, retroactive “rule of constitutional
law,” § 2244(b)(2)(A); or (ii) “the factual predicate for the
claim could not have been discovered previously through
the exercise of due diligence” and the facts would be suffi-
cient to establish that the factfinder would not have found
the defendant guilty, § 2244(b)(2)(B). See, e.g., Villafuerte
v. Stewart, 142 F.3d 1124, 1125 (9th Cir. 1998) (holding
Vienna Convention claims barred under § 2244(b)(2)(A)
and (b)(2)(B)). Only in “rare circumstances” will §

8

2244(b)(2)’s exceptions apply. See Mason v. Myers, 208
F.3d 414, 417 (2d Cir. 2000). This AEDPA rule, too,
would have to be jettisoned under Petitioner's theory.

In all of these situations, the ICJ’s interpretation of
Article 36(2) of Vienna Convention creates a conflict with
the provisions of AEDPA. The United States ratified the
Vienna Convention in 1969 and the Convention entered
into force for the United States on December 24, 1969.
See 21 U.S.T. at 77, 373. To be sure, the judgments in
Avena and LaGrand postdate AEDPA, but they interpret
the meaning of the Vienna Convention when it was
drafted in 1963, and thus when it entered into force for
the United States in 1969. See Avena, supra, {{ 86, 124
(discussing the travaux préparatoires of the Vienna Con-
vention); LaGrand, 2001 I.C.J at 493-94, 94 75-76 (dis-
cussing parties’ contentions regarding the travaux pré-
paratoires). Accordingly, the relevant date of the Vienna
Convention, for purposes of assessing any conflict with a
statute, is 1969—when it was ratified and entered into
force for the United States. Because AEDPA was adopted
over a quarter-century later, AEDPA is “last in date” and
must “control” over inconsistent provisions of the earlier
Vienna Convention. Whitney, 124 U.S. at 194; Breard,
523 U.S. at 376.

Il. ALTHOUGH THE VIENNA CONVENTION MAY
BE SELF-EXECUTING, JUDGMENTS OF THE
INTERNATIONAL COURT OF JUSTICE ARE
NOT.

A. Judgments of the International Court of Jus-
tice Are Not Self-Executing.

Petitioner and his amici argue that the Vienna Con-
vention is self-executing. Thus, according to Petitioner,
judgments of the ICJ interpreting the Convention must be

ae

9

enforced in federal court. See Pet.’s Br. at 30 (“Medellin’s
rights under the Avena Judgment are enforceable by the
courts of the United States without any further executive
or legislative action.”). Although he seems hesitant to say
so explicitly, this is essentially an argument that judg-
ments of the International Court of Justice are self-
executing, at least when the ICJ interprets a self-
executing treaty. See id. at 31-32 n.25 (attempting to dis-
tinguish Committee of U.S. Citizens Living in Nicar. v.
Reagan, 859 F.2d 929 (D.C. Cir. 1988)). Petitioner is mis-
taken.

The Vienna Convention may be self-executing, in the
sense that implementing legislation is unnecessary (at
least in most instances). The Executive Branch appar-
ently took that position in Senate hearings on ratification
of the Convention. See Torres v. Mullin, 540 U.S. 1035,
1039 (2003) (Breyer, J., dissenting from denial of certio-
rari) (quoting S. Exec. Rep. 91-9, app. at 5 (1969) (state-
ment of State Department Deputy Legal Adviser J. Ed-
ward Lyerly) (Vienna Convention “is entirely self-
executive and does not require any implementing or com-
plementing legislation”)). The Department of State con-
tinues to advise law enforcement officials that
“[iJmplementing legislation is not necessary (and the
VCCR and bilateral [consular relations] agreements are
thus ‘self-executing’) because executive, law enforcement,
and judicial authorities can implement these obligations
through their existing powers.” U.S. Dep’t of State, Con-
sular Notification and Access: Instructions for Federal,
State, and Local Law Enforcement Officials Regarding
Foreign Nationals in the United States and the Rights of
Consular Officials to Assist Them 44 (2003) (emphasis
added), http://travel.state.gov/pdf/CNA_book.pdf.$

3 On the other hand, the Executive Branch has taken the position
that the Vienna Convention does not create individual rights. See

10

That the Vienna Convention may be self-executing,
however, does not ipso facto make a judgment of the ICJ
interpreting the Convention self-executing. The United
States is a party to the Vienna Convention's Optional Pro-
tocol Concerning the Compulsory Settlement of Disputes,
done Apr. 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487.
Thus, the United States has agreed that “[d]isputes aris-
ing out of the interpretation or application of the Conven-
tion shall lie within the compulsory jurisdiction of the In-
ternational Court of Justice and may accordingly be
brought before the Court by an application made by any
party to the dispute being a Party to the present Proto-
col.” Jd., art. I, 21 U.S.T. at 326, 596 U.N.T\S. at 488.
But under the ICJ Statute, “[t]he decision of the Court
has no binding force except between the parties and in re-
spect of that particular case.” Statute of the International
Court of Justice, art. 59, June 26, 1945, 59 Stat. 1055,
1062, 3 Bevans 1179, 1190 (emphasis added). Moreover,
“fo]nly states may be parties in cases before the Court.”
Id., art. 34(1), 59 Stat. at 1059, 3 Bevans at 1186. Thus,
although Petitioner's case was discussed in Avena, he was
not a party in Avena, and the judgment Avena is not bind-
ing between Petitioner and the United States or between

United States v. Li, 206 F.3d 56, 63 (1st Cir.) (en banc) (quoting U.S.
Dep't of State, Department of State Answers to the Questions Posed by
the First Circuit in United States v. Nai Fook Li at A-1, A-2, A-3 (Oct.
15, 1999), available at U.S. Dep't of State, Digest of United States Prac-
tice in International Law 2000, ch. 2, doc. no. 1, http://www.state.gov/
documents/organization/7111. doc), cert. denied, 531 U.S. 956 (2000);
see also id. at 63 n.3 (noting that State Department had not officially
addressed whether individual could enforce consular notification
through mandamus; Vienna Convention, pmbl., para. 5, 21 US.T. at
79, 596 U.N.TS. at 262 (“Realizing that the purpose of such privileges
and immunities is not to benefit individuals but to ensure the efficient
performance of functions by consular posts on behalf of their respective
States”). The Fourth Circuit observed in United States v. Al-Hamdi,
356 F.3d 564 (4th Cir. 2004), that “no [U.S.] court has ever held that
the Vienna Convention creates individual rights.” Jd. at 575 n.13.

11

Petitioner and the State of Texas. The judgment in Avena
is only binding between the United States and Mexico.

Of course, that is not to say that the United States’ ac-
tions with respect to Petitioner have no impact on its com-
pliance with the-judgment in Avena; they do. The duty to
comply with ICJ judgments principally arises from
sources outside the Vienna Convention itself, however.
Under Article 94(1) of the United Nations Charter, “[eJach
Member of the United Nations undertakes to comply with
the decision of the International Court of Justice in any
case to which it is a party.” U.N. Charter, art. 94(1), June
26, 1945, 59 Stat. 1031, 1051, 3 Bevans 1153, 1175. The
problem for Petitioner, however, is that the lower courts
have generally treated the provisions of the United
Nations Charter and the ICJ Statute as not being self-
executing. See Flores v. So. Peru Copper Corp., 343 F.3d
140, 157 n.24 (2d Cir. 2003) (“[A]lthough the Charter of
the United Nations has been ratified by the United
States, it is not self-executing.”); Committee of U.S. Citi-
zens Living in Nicar. v. Reagan, 859 F.2d 929, 938 (D.C.
Cir. 1988) (Mikva, J.) (Article 94 of U.N. Charter and ICJ
Statute not self-executing); Frolova v. USSR, 761 F.2d
370, 374—75 (7th Cir. 1985) (per curiam) (“We have found
no case holding that the U.N. Charter is self-executing
....) (Articles 55 and 56 of U.N. Charter not self-
executing); Spiess v. C. Itoh & Co. (Am.), Inc., 643 F.2d
353, 363 (5th Cir. Unit A Apr. 1981) (“[T]he Charter of the
United Nations, although adopted by the United States, is
not a self-executing international obligation.”), vacated on
other grounds, 457 U.S. 1128 (1982); Hitai v. INS, 343
F.2d 466 (2d Cir.) (Article 55 of U.N. Charter not self-
executing), cert. denied, 382 U.S. 816 (1965); see also Tel-
Oren v. Libyan Arab Repub., 726 F.2d 774, 809 (D.C. Cir.
1984) (Bork, J., concurring) (Articles 1 and 2 of U.N.
Charter not self-executing), cert. denied, 470 U.S. 1003
(1985); People of Saipan v. U.S. Dep't of Interior, 502 F.2d

12

90, 100 (9th Cir. 1974) (Trask, J., concurring) (“First of
all, it appears clear to me that the Charter of the United
Nations is not’ self-executing and does not in and of itself
create rights which are justiciable between individual liti-
gants.”), cert. denied, 420 U.S. 1003 (1975).

Underscoring the non-self-executing nature of Article
94, paragraph 2 of the Article provides a mechanism for
enforcing compliance: :

If any party to a case fails to perform the obli-
gations incumbent upon it under a judgment ren-
dered by the Court, the other party may have re-
course to the Security Council; which may, if it
deems necessary, make recommendations or decide
upon measures to be taken to give effect to the
judgment.

Id., art. 94(2), 59 Stat. at 1051, 3 Bevans at 1175. As one
commentator has observed, “[b]y indicating an alternative
remedy for non-compliance, it is unlikely that a court
would find the ICJ provision of the Charter to be self-
executing because the Charter itself contemplates that
the resolution of ICJ disputes ha[s] been committed to the
Security Council.” Julian G. Ku, The State of New York
Does Exist: How the States Control Compliance with In-
ternational Law, 82 N.C. L. Rev. 457, 516 (2004); see also
David M. Reilly & Sarita Ordonez, Effect of the Jurispru-
dence of the International Court of Justice on National
Courts, 28 N.Y.U. J. Int'l L. & Pol'y 435, 481 (1997)
(“[C]ourts have pointed to the non-self-executing nature of
the U.N. Charter to support the proposition that enabling
legislation is required before private individuals can claim
a cause of action in a domestic court based on a judgment
obtained before the ICJ.”).

Indeed, the judgments in both LaGrand and Avena re-
inforce the conclusion that those judgments are not self-
executing. In LaGrand, the ICJ concluded that, if the

Dt

13

United States failed in its consular notification obligation
under Article 36(1)(b) of the Vienna Convention and a
German national were “convicted and sentenced to severe
penalties,” then under Article 36(2),

it would be incumbent upon the United States to
allow the review and reconsideration of the convic-
tion and sentence by taking account of the viola-
tion of the rights set forth in the Convention. This
obligation can be carried out in various ways. The
choice of means must be left to the United States.

2001 I.C.J. at 514 § 125 (emphasis added); see also id. at
516 § 128(7) (“[S]hould nationals of the Federal Republic
of Germany nonetheless be sentenced to severe penalties,
without their rights under Article 36, paragraph 1(b), of
the Convention having been respected, the United States
of America, by means of its own choosing, shall allow the
review and reconsideration of the conviction and sentence
by taking account of the violation of the rights set forth in
that Convention.”) (emphasis added).

In Avena, the ICJ rejected Mexico's request that the
court order the United States to vacate the convictions
and sentences of the Mexican nationals at issue in that
case. See Avena, supra, §§ 116—125. The ICJ stated that
“[i]t is not to be presumed, as Mexico asserts, that partial
or total annulment of conviction or sentence provides the
necessary and sole remedy.” Jd. § 123. The court simi-
larly rejected Mexico's contention that the United States
be required to exclude any statements or confessions ob-
tained before consular notification occurred. Id. §4 126—
127. On the other hand, the court rejected the United
States’ argument that executive clemency afforded ade-
quate “review and reconsideration” under LaGrand. Id. 4
143. The ICJ concluded “that it is the judicial process
that is suited to this task” of review and reconsideration,
not clemency proceedings. Jd. § 141. In the end, how-

14

ever, the ICJ reaffirmed “that the appropriate reparation
in this case consists in the obligation of the United States
of America to provide, by means of its own choosing, re-
view and reconsideration of the convictions and sentences
... by taking account both of the violation of the rights
set forth in Article 36 of the Convention and of para-
graphs 138 to 141 of this Judgment ....” Jd. § 153(9)
(emphasis added). By leaving the process of “review and
reconsideration” to the United States “by means of its
own choosing,” the ICJ essentially recognized that its
judgment should not be considered self-executing, 1e.,
that some action regarding the means of “review and re-
consideration” needs to be taken by the United States
first.

B. Treating Judgments of the International
Court of Justice as Non-Self-Executing
Avoids Serious Constitutional Questions.

Interpreting judgments of the ICJ as not being self-
executing not only comports with the U.N. Charter and
the ICJ Statute, it avoids serious constitutional questions
regarding international delegations and national sover-
eignty. As Justice O'Connor observed in an address in
1995, “the vesting of certain adjudicatory authority in in-
ternational tribunals presents a very significant constitu-
tional question in the United States. Article III of our
Constitution reserves to federal courts the power to decide
cases and controversies, and the U.S. Congress may not
delegate to another tribunal ‘the essential attributes of
judicial power.” Sandra Day O’Connor, The Federalism
of Free Nations, 28 N.Y.U. J. int'l L. & Pol’y 35, 42 (1997)
(quoting Commodity Futures Trading Comm’n v. Schor,
478 U.S. 833, 851 (1986)). One legal commentator has
observed that “treating the decisions and actions of inter-
national institutions as non-self-executing within the U.S.
legal system ... will reduce many of the constitutional
concerns associated with international delegations with-

a

15

out significantly affecting the United States’s ability to
participate in international institutions.” Curtis A. Brad-
ley, International Delegations, the Structural Constitu-
tion, and Non-Self-Execution, 55 Stan. L. Rev. 1557,
1595-96 (2003); see id. at 1572-73 (discussing the ICJ’s
decisions in LaGrand and Vienna Convention on Consular
Relations (Para. v. U.S.), 1998 I.C.J. 248 (Apr. 9) (provi-
sional measures order regarding stay of execution for An-
gel Francisco Breard)).

The constitutional questions that would arise from
treating the judgment in Avena as a self-executing, bind-
ing rule of decision in Petitioner's case are troubling. The
power to create binding judicial precedent is one of the
classic, “essential attributes of judicial power.” See Anas-
tasoff v. United States, 223 F.3d 898, 900-04 (8th Cir.)
(“We conclude therefore that, as the Framers intended,
the doctrine of precedent limits the ‘judicial power’ dele-
gated to the courts in Article III.”), vacated as moot, 235
F.3d 1054 (8th Cir. 2000) (en banc). Assigning the ICJ
the “judicial power” of creating binding rules of decision
for lower federal courts would violate Article III's assign-
ment of that power to this Court. See U.S. Const. art. III,
§ 1, cl. 1 (“The judicial Power of the United States shall be
vested in one supreme Court, and in such inferior Courts
as the Congress may from time to time ordain and estab-
lish.”); Joshua A. Brook, Federalism and Foreign Affairs:
How To Remedy Violations of the Vienna Convention and
Obey the U.S. Constitution, Too, 37 U. Mich. J.L. Reform
573, 597-98 (2004) (“Although the case can be made that
the U.N Charter and the Statute of the ICJ may require
domestic courts to enforce ICJ judgments, such an inter-
pretation would probably run afoul of the Constitution’s
Article III provisions establishing the hierarchy of the
federal judiciary.”). Certainly, “a treaty permitting the
ICJ to overturn determinations of the federal courts would
be unconstitutional.” A. Mark Weisburd, International

16

Courts and American Courts, 21 Mich. J. Int'l] L. 877, 896
(2000) (emphasis added).

Separate and apart from Article III, treating judg-
ments of the ICJ as self-executing, binding rules of deci-
sion for state courts would raise serious federalism con-
cerns. In Breard, the Executive Branch recognized that
“Our Federalism,” Younger v. Harris, 401 U.S. 37, 44
(1971), “imposes limits on the federal government's au-
thority to interfere with the criminal justice system of the
States.” Brief for the United States as Amicus Curiae 51,
Breard v. Greene, 523 U.S. 371 (1998) (No. 97-1390).
Treating ICJ judgments as self-executing could effectively
permit the ICJ to commandeer state governments to en-
force its judgments against the wishes of those govern-
ments and state officials and in violation of state-court
precedent. Such “commandeering” would run afoul of this
Court’s holdings in Printz v. United States, 521 U.S. 898,
933 (1997), and New York v. United States, 505 U.S. 144,
176 (1992). This Court has observed, albeit in a different
context, that

[a] power to press a State’s own courts into federal
service to coerce the other branches of the State
... is the power first to turn the State against it-
self and ultimately to commandeer the entire po-
litical machinery of the State against its will and
at the behest of individuals. Such plenary federal
control of state governmental processes denigrates
the separate sovereignty of the States.

Alden v. Maine, 527 U.S. 706, 749 (1999). If the Constitu-
tion does not authorize the Federal Government to “com-
mandeer” state governments, it surely does not authorize
the ICJ to do so.* By interpreting judgments of the ICJ as

4 Nor, it should be noted, has the ICJ presumed to have such
power, given its acknowledgement of the need for further action to en-
force its judgments in LaGrand and Avena,

eee

nas

17

non-self-executing, however, these federalism concerns, as
well as Article III delegation issues, can be avoided.

Il1.THIS COURT SHOULD DEFER TO THE PO-
LITICAL BRANCHES TO DECIDE HOW TO
COMPLY WITH THE JUDGMENTS IN LA-
GRAND AND AVENA.

Under the judgment in Avena, the United States must
choose how to provide “review and reconsideration of the
convictions and sentences” at issue. Avena, supra, 4
153(9). As a delicate matter of foreign policy, that task
should be left to the Executive Branch and Congress, at
least in the first instance. As Justice Jackson observed,

the very nature of. . . decisions as to foreign policy
is political, not judicial. Such decisions are wholly
confided by our Constitution to the political de-
partments of the government, Executive and Leg-
islative. They are delicate, complex, and involve
‘large elements of prophecy. They are and should
be undertaken only by those directly responsible to
the people whose welfare they advance or imperil.

Chicago & So. Air Lines v. Waterman S.S. Corp., 333 U.S.
103, 111 (1948).

Petitioner asserts that this Court need not stay its
hand or otherwise defer. Some will surely argue that this
Court’s modification of the procedural default rule would
constitute the United States’ choice as to how to comply
with Avena just as much as a statute or executive order
would. Such an argument neglects, however, the extent
to which the later-enacted AEDPA bars the kind of “re-
view and reconsideration” Petitioner seeks. Even if this
Court were to modify the procedural default rule, that
alone would not provide Petitioner with the relief he
seeks. He would still need Congress to expand the

18

grounds for granting a certificate of appealability in §
2253(c)(2). Other foreign nationals would need Congress
to modify or toll AEDPA’s statute of limitations,
§ 2244(d)(1), others would require congressional authori-
zation to file second or successive habeas petitions, §
2244(b), and still others would need special permission for
an evidentiary hearing, § 2254(e)(2).

Given these statutory barriers, which must take
precedence over earlier treaty obligations, it would be bet-
ter to leave the question of implementation of Avena to
the political branches. There, the Executive and Congress
can consider all of the issues raised by Avena together,
rather than piecemeal. Those issues would be numerous,
e.g.: (1) Should “review and reconsideration” take place
as part of federal habeas review, or should the States be
allowed the option of addressing the issue first in state
collateral review proceedings?; (2) What kind of showing,
if any, should foreign nationals be required to make to
demonstrate that they are not “sandbagging,” i.e., that
they (and their lawyers) were genuinely ignorant of their
Article 36 consular notification rights?; (3) What penalties
(other than death) are sufficiently “severe” to qualify for
“review and reconsideration” under Avena? The political
branches can work toward a solution that protects and
balances the United States’ sovereignty interests, the
States’ interests in finality and the efficient administra-
tion of criminal justice, and foreign nationals’ interests in
consular notification in an equitable fashion—all the
while bearing in mind the important ramifications such a
solution would have for United States citizens living and
traveling abroad.

19
CONCLUSION

The judgment of the court of appeals should be af-

firmed.

February 28, 2005

TROY KING
Attorney General

J. CLAYTON CRENSHAW
CHARLES B. CAMPBELL*
Assistant Attorneys General
Counsel of Record*

OFFICE OF THE ATTORNEY GENERAL
11 South Union Street
Montgomery, Alabama 36130-0152
(334) 242-7300; (334) 353-3198*

Counsel for the State of Alabama

Additional Counsel Listed Inside
Front Cover

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0112%3A16. Public record. Not legal advice.