Amicus Curiae Brief — Medellin v. Dretke

No. 04-5928

ee; rr ee ee ee

In The

Supreme Court of the United States

+

JOSE ERNESTO MEDELLIN,

Petitioner,

V.

DOUG DRETKE, DIRECTOR, TEXAS

DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent.

°

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fifth Circuit

.

BRIEF OF LIBERTY LEGAL

INSTITUTE AS AMICUS CURIAE

IN SUPPORT OF RESPONDENT

°

KELLY SHACKELFORD

Counsel of Record

HIRAM S. SASSER, III

JONATHAN M. SAENZ

LIBERTY LEGAL INSTITUTE

903 E. 18th, Ste. 230

Plano, TX 75074

(972) 423-3131

Counsel for Amicus Curtae

COCKLE LAW BRIEF PRINTING CO (800) 225-0904

OR CALL COLLECT (402) 342-2841

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..............ccccccssssssssssssrersersees iii

INTEREST OF AMICUS CURIAE. .............ccccccceceeeeeeees 1

SUMMARY OF THE ARGUMENT ...............ccccceeeeeeees 2

BEI FERIIE accscniscetisnscstespiviiinisbeitascsdnminnanieieaaiiinn 3

I. THE AVENA DECISION DOES NOT BIND

THIS COURT TO FASHION AN EXTRAOR-

DINARY REMEDY FOR AN INDIVIDUAL... 3

A. THE VIENNA CONVENTION DOES NOT

PROVIDE FOR AN EXTRAORDINARY

REMEDY FOR AN INDIVIDUAL .............. 4

B. THE AVENA DECISION FALLS SHORT

OF MANDATING AN EXTRAORDINARY

REMEDY FOR INDIVIDUALB.................. 5

C. IT IS UNNECESSARY FOR THIS

COURT TO FASHION AN EXTRAORDI-

NARY INDIVIDUAL REMEDY FOR AN

! ARTICLE 36 VIOLATION.....................0000 6

Il. THE PROCEDURAL DEFAULT RULE IS

NOT AN ABSOLUTE BAR TO COURTS RE-

VIEWING VIENNA CONVENTION VIOLA-

A. THE PROCEDURAL DEFAULT RULE

CARRIES WITH IT A PACKAGE OF EX-

CEPTIONS DESIGNED TO PREVENT

AE TRF TIED ccscescvesercsecsccescesenccosscnneseneens 8

il

TABLE OF CONTENTS -— Continued

Page

B. THIS COURT, IN REVIEWING AND RE-

CONSIDERING THIS CASE, NEEDS

ONLY TO CONSIDER WHETHER THE

ARTICLE 36 VIOLATION FALLS WITH-

IN ONE OF THE PRE-ESTABLISHED

EXCEPTIONS TO THE PROCEDURAL

DEFAULT RULE AND NEED NOT

FASHION AN EXTRAORDINARY REM-

EDY FOR ANY SUCH VIOLATION .......... 9

Ill. THIS COURT SHOULD ADOPT A PROCE-

DURAL RULE OF BIFURCATED ANALYSIS

WHEN INVOKING OR RELYING UPON IN-

TERNATIONAL LAW — REQUIRING THE

COURT TO FIRST ANALYZE ANY ISSUE US-

ING PURELY DOMESTIC LEGAL SOURCES

AND THEN, ONLY IF SUCH DOMESTIC LE-

GAL SOURCES ARE FOUND INADEQUATE,

RESORTING TO INTERNATIONAL LEGAL

BEF O ENED corcncosonssonsesssnssnssensiinebaainaniiaianniiia 10

A. COURTS AND PRACITITIONERS NEED

SPECIFIC GUIDANCE FROM THIS

COURT REGARDING THE ROLE OF

INTERNATIONAL LAW IN OUR DO-

MESTIC JURISPRUDENCE ..................004 10

B. A BIFURCATED ANLAYSIS APPROACH

IS REQUIRED UNDER CUSTOMARY

INTERNATIONAL LAW ....00.......cccccceseeeeeee 12

CSI cccocscsocencocerssovnpssscoensetinsinthiididiimaal 13

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Coleman v. Thompson, 501 U.S. 722 (1991) .........:cccccceeeeees 9

Grutter v. Bollinger, 539 U.S. 306 (2003) ...........cccccceeeeees ll

Lawrence v. Texas, 539 U.S. 558 (2003)............000+ Deenpseses ll

Miranda v. Arizona, 384 U.S. 436 (1966) ...............ccc0 5,6

Murray v. Carrier, 477 U.S. 478 (1986) .......ccccccceceeereeeeeees 9

Olympic Airways v. Husain, 540 U.S. 644 (2004)............. 11

The Paquette Habana, 175 U.S. 677 (1900).............ceees 12

Wainwright v. Sykes, 433 U.S. 72 (1977) .......ccccceeereeeeeereees 9

INTERNATIONAL CASES .

Ambatielos Case (Greece v. U.K.), 1951, 12 R.Int]

Ast. Ramen GB. cccerencectscescctecsnsstessssevesdhentenciantecnntetnantanien 13

Avena and Other Mexican Nationals (Mex. v.U.S.), __

2004 1.0.4. 1 Claw. 81) ..cccccccssccccsesccccscccccesosessocneecs passim

Barcelona Traction, Light and Power Co. (Belgium

v. Spain), 1970 1.0.0. B............cescccccrseccscecresseccssecssosenorees 12

Interhandel (Switz.v. U.S.), 1959 LC.J. Rep. 5, 27

Ciba, BED ccocecccscsesssevescetensevessonsenstnntetheseneainaninanaiiainnieats 12

STATUTE

4B UBD. © BBGB ccoccesctcasosnesesoccscsest Sn csseatieabnnegueuninnniesattiied 4

iv

TABLE OF AUTHORITIES — Continued

Page

TREATIES

Optional Protocol to the Vienna Convention on

Consular Relations Concerning the Compulsory

Settlement of Disputes, opened for signature

April 24, 1963, 21 U.S.T., 325, 596 U.N.T:S. 487......... 4,5

Statute of the International Court of Justice,

opened for signature June 26, 1945, 59 Stat. 1031......... 4

United Nations Charter, opened for signature June

re IRS I tinecedtinretnndichaciiatliteeritien ine icant 6

Vienna Convention on Consular Relations, opened

for signature, April 24, 1963, 21 U.S.T. 77, 596

7 RRS arate. OS eee 3,4

OTHER AUTHORITIES

RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS

LAW OF THE UNITED STATES (1987) ....0.0........-ccccccccoceceeeeee 6

U.S. Dep't of State, U.S. Terminates Acceptance of

ICJ Compulsory jurisdiction, Der’T OF STATE

BULL., Jan. 1986, at 67 (letter from U.S. Secre-

tary of State to U.N. Secretary-General, Oct. 7,

SUID ccctsntainvasnibinnntalnieabtnslpnseleniitsipindtenaonsidentiiiisidelciibaail cite’ 6

1

INTEREST OF AMICUS CURIAE'

Amicus Curiae Liberty Legal Institute is a non-profit

law firm dedicated to the preservation of first amendment

rights and religious freedom. In its commitment to the

protection of religious liberty of all faiths, the Institute

represents religious institutions and individuals across the

country. The Liberty Legal Institute is increasingly aware

that international law is playing a role in decisions by the

United States Supreme Court in a diverse array of issues,

including issues regarding domestic public policy. While

international law has played a distinct role in our juris-

prudence since the formation of this Nation, it is impor-

tant to recognize that our domestic jurisprudence superbly

serves this Nation, its citizens and visiting foreign nation-

als.

The customary international rule of exhaustion of

local remedies compels federal courts to first exhaust all

domestic legal analysis before engaging in the application

of foreign sources of law. Amicus believes very strongly

that our national sovereignty depends upon federal courts

restraining themselves to bifurcate analysis in all cases

where international law may be seen as providing helpful

guidance. Such bifurcation of analysis protects the integrity

of our judicial system and highlights exactly how the Court is

employing international law. While the social utility of

relying upon international sources in various areas of the

law, such as domestic constitutional jurisprudence, remains

* The parties have consented to the filing of this brief. Their letters

of consent have been filed with the Clerk of this Court. Pursuant to this

Court's Rule 37.6, none of the counsel for the parties authored this brief

in whole or in part and no one other than amicus or its counsel contrib-

uted money or services to the preparation and submission of this brief.

2

controversial, it is the position of amicus that this Court

should at least put lower courts and practitioners on notice

of exactly how international law may be applied. Bifurca-

tion will ensure the consistency the legal community has

come to expect from the judiciary while not foreclosing the

application of international law in appropriate circum- —

stances.

¢

SUMMARY OF THE ARGUMENT

The Vienna Convention on Consular Relations does

not provide for an in“ ividual remedy, but merely provides

for remedies between nation-states. Because the Vienna

Convention itself does not create an individual remedy

and the International Court of Justice does not provide

standing to individuals, the Avena court fell far short of

requiring any specific extraordinary remedy for an indi-

vidual. This Court is left to apply domestic law of its

choosing to satisfy the “review and reconsideration”

recommendation in Avena.

If this Court chooses to review and reconsider the

conviction and sentence of Petitioner in light of the Article

36 violation, current domestic jurisprudence provides an

adequate remedy. The exceptions to the procedural default

rule give this Court the avenue to consider the Article 36

violation without resorting to reliance upon a decision by

an international tribunal.

To avoid unnecessary reliance upon international

sources for authority and comply with the binding interna-

tional customary rule of exhaustion of municipal remedies,

this Court should adopt a bifurcated analysis approach.

3

The Court should begin by analyzing any issue presented

using purely domestic sources and legal analysis. Only if

an adequate resolution cannot be found in domestic legal

analysis should the Court turn to international sources.

Using this procedural device, this Court could balance the

requirement that domestic legal analysis be final before

international sources are sought and the desire by some

members of the Court to look toward international sources

for guidance when necessitated. Such a balance creates

consistency within our domestic judicial system and

ensures that purely domestic issues are resolved using

purely domestic legal analysis.

o

ARGUMENT

I. The Avena decision does not bind this Court to

fashion an extraordinary individual remedy

for Petitioner.

Public international law is the legal relationship

undertaken between nation-states. States remain sover-

eign and choose the manner in which they are bound by

international law, save jus cogens, a limited class of legal

obligations states may not avoid. When states undertake

to form an agreement, or treaty, each state incurs obliga-

tions to the other and remedies for a breach or material

breach of that agreement are fashioned. As is the case

with the Vienna Convention on Consular Relations, opened

for signature April 24, 1963, 21 U.S.T. 77, 596 U.N.TS.

261, treaties between sovereigns are almost always obliga-

tions owed state to state, not state to individual or indi-

vidual to state.

4

A. The Vienna Convention does not provide

for an extraordinary remedy for an indi-

vidual.

The Vienna Convention does not provide for an ex-

traordinary individual remedy. This is not to say that the

Vienna Convention is not self-executing under the domes-

tic doctrine of self-execution. However, whether the Vienna

Convention requires further implementing legislation to

be the “law of the land” under the Supremacy Clause

misses the point. Whether or not such implementing

legislation is necessary, the Vienna Convention itself

provides no remedy for any breach that an individual may

invoke. The only remedy for a violation of the Vienna

Convention is presented in the Optional Protocol to the

Vienna Convention on Consular Relations Concerning the

Compulsory Settlement of Disputes, opened for signature

April 24, 1963, 21 U.S.T. 325, 596 U.N.T.S. 487. This

remedy, of course, only applies to states.’ Thus, the Vienna

Convention may confer rights to individuals, but it does

not itself create a remedy for that right.’

The Vienna Convention itself, within the four corners

of the document, specifically reads in the preamble,

“[rjealizing that the purpose of such privileges and immu-

nities is not to benefit individuals but to ensure the

* The Optional Protocol requires ratifying states to submit their

cause before the International Court of Justice, which only allows

states to appear as parties. See Statute of the International Court of

Justice, art. 34(1), opened for signature June 26, 1945, 59 Stat. 1031.

* Just as 42 U.S.C. § 1983 provides a judicial vehicle upon which

rides constitutional claims so that a remedy may be fashioned, so too

must the Vienna Convention ride on some legislation to fashion a

remedy.

5

efficient performance of functions by consular posts on

behalf of their respective States.” Thus, the Vienna Con-

vention alone does not provide a remedy for a violation of

any particular individual’s rights, save the Optional

Protocol. Only if a state ratifies the Optional Protocol may

it, as the state, pursue a remedy against another ratifying

state at the International Court of Justice.

B. The Avena decision falls short of mandat-

ing an extraordinary remedy for individu-

als.

Mexico availed itself of the only remedy available

under the Vienna Convention, by seeking an opinion from

the International Court of Justice. The decision in Avena

and Other Mexican Nationals (Mex. v. U.S.), 2004 L.C.J. 1

(Mar. 31) (hereinafter Avena) fell far short of Mexico’s

desire in its fourth submission to full reparation in the

form of restitutio in integrum. See id. at {{ 116-125. First

and foremost, the International Court of Justice specifi-

cally did not adopt Mexico’s contention that the rights in

the Vienna Convention rise to the level of “human rights”

and “neither the text nor the object and purpose of the

Convention, nor any indication in the travaux prepara-

teires, support the conclusion.” Jd. at { 124. Thus, the

International Court of Justice specifically declined to

fashion a specific extraordinary remedy for individuals,

but rather left it “for the courts of the United States to

examine the facts, and in particular the prejudice and its

causes, taking account of the violation of the rights set

forth in the Convention.”* Id. at { 122. Such “review and

* Contrast this with the requirement for the famous Miranda

warnings whereby a conviction based upon a confession obtained in

(Continued on following page)

6

reconsideration” in light of the Article 36 violations is all

that is suggested by the International Court of Justice.*

This “review and reconsideration” decision by the ICJ is

not inconsistent with already established judicial practice

in the United States regarding the procedural default rule.

C. It is unnecessary for this Court to fashion

an extraordinary individual remedy for an

Article 36 violation.

Even though Petitioner’s right does not rise to the

level of a “human right,” amicus assumes for purposes of

this brief that Petitioner nevertheless suffered the im-

pingement of a right for which the United States as a

sovereign is ultimately responsible. See RESTATEMENT

(THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED

violation of Miranda v. Arizona, 384 U.S. 436 (1966) must be over-

turned. The Avena decision explicitly rejects the notion that the judicial

proceedings were so tainted by the Article 36 violation that the convic-

tions and sentences must be overturned. Such a finding by the Avena

court would certainly require a remedy in the form of restitutio in

integrum, as Mexico argued. However, the Avena court wholly rejected

Mexico's submission in that regard. See Avena, { 125.

* It is important to note that the International Court of Justice is

not a link in the judicial chain of the system of justice for the United

States. Indeed, the United States has taken a position hostile to the

International Court by withdrawing from the voluntary jurisdiction of

the court. See U.S. Dep’t of State, U.S. Terminates Acceptance of ICJ

Compulsory jurisdiction, Dep’T OF STATE BULL., Jan. 1986, at 67 (letter

from U.S. Secretary of State to U.N. Secretary-General, Oct. 7, 1985).

There is no stare decisis for the International Court and all of its

opinions have no binding force beyond the immediate matter and do not

create required precedent. See Statute of the International Court of

Justice, art. 59. In fact, it is clear that enforcement of decisions of the

International Court of Justice falls to the Security Council, not internal

judicial systems of various states. See United Nations Charter, opened

for signature June 26, 1945, art. 94(2), 59 Stat. 1031.

7

STATES § 711(b) (1987). For such a violation, this Court and

the International Court of Justice may look to four sources

to fashion a remedy. Jd. at § 713(2).

First, a tribunal may look to an “international agree-

ment between the person’s state of nationality and the

state responsible for the injury.” Jd. at § 713(2)(a). The

Vienna Convention is such an agreement and as discussed

above, the Convention does not provide for an individual

remedy as other treaties may provide. That is why the ICJ

did not attempt to mandate a specific remedy and instead

recommended “review and reconsideration,” because no

such remedy exists under international law.

Second, a tribunal may look to a remedy provided by

“the law of another state.” Jd. at 713(b)(c). Petitioner has

not advanced that the law of another state provides any

specific individual remedy for an Article 36 violation and

neither did the ICJ.

Third, a tribunal may look to a remedy provided by

“agreement between the person injured and the state

responsible for the injury.” Jd. at § 713(2)(d). There is no

such agreement present in this case.

Finally, a tribunal may look to “the law of the state

responsible for the injury.” Jd. at 713(2)(b). Although the

Avena court did not specifically state as much, it appears

that the ICJ’s opinion relies exclusively upon this source

for a remedy. The Avena court merely recommended the

United States undertake “review and reconsideration of the

convictions and sentences.” Avena, at { 153. In addition,

8

the ICJ left it to the United States to decide under its own

domestic law the effect of the Article 36 violation upon the

conviction and sentence of petitioner.’ Thus, it is for this

Court to determine under our own package of domestic

rules the measure of the effect of any Article 36 violation

upon the conviction and sentence of petitioner.

Petitioner, Mexico and the ICJ seem to agree that the

procedural default rule, a purely domestic rule, prohibits

such review and reconsideration. It clearly does not. This

Court, in determining whether the Article 36 violation

before it in this case rises to the level that requires the

invocation of one of the pre-existing exceptions to the

procedural default rule, is conducting the “review and

reconsideration” recommended by the decision in Avena.

II. The procedural default rule is not an absolute

bar to courts reviewing Vienna Convention vio-

lations.

A. The procedural default rule carries with it

a package of exceptions designed to pre-

vent an injustice.

This Court made it “explicit” that “[iJin all cases in

which a state prisoner has defaulted his federal claims in

state court ... federal habeas review of the claims is

* “The Court affirms that the case before it concerns Article 36 of

the Vienna Convention and not the correctness as such of any convic-

tion or sentencing. The question of whether the violations of Article 36,

paragraph 1, are to be regarded as having, in the causal sequence of

events, ultimately led to convictions and severe penalties is an

integral part of criminal proceedings before the courts of the

United States and is for them to determine in the process of

review and reconsideration.” Avena, at { 122. (emphasis added)

9

barred unless the prisoner can demonstrate cause for the

default and actual prejudice as a result of the alleged

violation of federal law, or demonstrate that failure to

consider the claims will result in a fundamental miscar-

riage of justice.” Coleman v. Thompson, 501 U.S. 722, 750

(1991); see also Wainwright v. Sykes, 433 U.S. 72, 87

(1977).’ The purpose of these two exceptions is clear: they

are designed to ensure that procedural rules do not sub-

vert our overarching desire to achieve real justice. This

Court has clearly applicable domestic law at its disposal to

adjudicate this case without resorting to international law.

B. This Court, in reviewing and reconsidering

- this case, needs only to consider whether

the Article 36 violation falls within one of

the pre-established exceptions to the pro-

cedural default rule and need not fashion

an extraordinary remedy for any such vio-.

lation.

Petitioner attempts to put this Court in an awkward

position. Petitioner’s argument is focused around the

contention that the Avena decision “supplies the rule of

decision in this case.” Petitioner’s brief, p. 41. There is a

false premise built into this argument: if the Court desires

to give effect to the suggestion of review and reconsidera-

tion by the Avena court, then it must discard the proce-

dural default rule entirely in order to properly review and

reconsider the Article 36 violation. This is untrue. This

Court may analyze this case in light of the exceptions to

" In addition, the default rule does not apply when the alleged

constitutional violation results in the conviction of the innocent. See

Murray v. Carrier, 477 U.S. 478 (1986).

10

the procedural default rule to determine whether an

Article 36 violation rises to the level of a miscarriage of

justice or is a cause that gave rise to prejudice in the state

court proceedings.’ Such a “review and reconsideration” is

grounded in domestic law and does not force this Court to

bow to the will of an external body.

III. This Court should adopt a procedural rule of

bifurcated analysis when invoking or relying

upon international law - requiring the Court to

first analyze any issue using purely domestic

legal sources and then, only if such domestic

legal sources are found inadequate, resorting

to international legal resources.

A. Courts and practitioners need specific

guidance from this Court regarding the

role of international law in our domestic

jurisprudence.

There is much confusion when this Court engages in

domestic legal analysis that is “informed” by international

legal sources. This confusion is unnecessary. Whatever the

perceived value of international sources, it is incumbent

upon this Court to bifurcate its analysis. The Court should

first look to see if a question may be answered using

* It seems fairly obvious that Petitioner’s counsel would seek some

remediation for Petitioner’s conviction and sentence along all avenues

judicially available. The fact that Petitioner did not raise the issue that

the Article 36 violation falls within one of the exceptions to the proce-

dura] default rule before this Court or below renders the unmentioned

quite obvious. It seems from the briefing that the real interests of

Petitioner diminish before the all important cause of converting the

Internationa] Court of Justice into the Supreme Court and reducing the

United States Supreme Court to the role of a mere judicial subsidiary.

11

purely domestic law. Only if domestic law has been com-

pletely exhausted should the Court turn to international

sources. Such a procedural rule of bifurcated analysis will

serve three essential policy purposes.

First, such bifurcated analysis will further the devel-

opment of a consistent body of law. Jurists and legal

professionals will be able to depend on the stability of the

law as it is crafted and molded in our domestic legal

system. The international legal system, with so many

moving parts, does not provide the same level of consis-

tency and predictability. Second, it will curb the fear of so

many that international law is being used to replace

domestic legal analysis, including our constitutional

jurisprudence. In the wake of Lawrence v. Texas, 539 U.S.

558 (2003) and Grutter v. Bollinger, 539 U.S. 306 (2003), it

is important for this Court to demonstrate that domestic

legal analysis may stand on its own foundation. Third, it

reserves international law for the real role it plays in our

national judicial system. See, e.g., Olympic Airways v.

Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting)

(recognizing this Court’s practice of according the judg-

ments of sister signatories to a treaty “great weight”).”

* While some argue it is appropriate for this Court to consider the

Avena decision in light of its interpretation of the actions of the

government officials involved as violations of Article 36 of the Vienna

Convention, this Court should refrain from reading into that decision a

mandate to fashion some new remedy. Even the Avena decision itself

makes clear that the remedy for the individual Mexican nationals is

solely within the discretion of the United States judiciary. See Avena,

q 122.

12

B. A bifurcated analysis approach is required

under customary international law.

The exhaustion of municipal or local remedies is a

long standing principle of customary international law. See

Interhandel (Switz. v. U.S.), 1959 LC.J. Rep. 5, 27 (Mar.

21) (“The rule that local remedies must be exhausted

before international proceedings may be instituted is a

well-established rule of customary international law.”).

The Avena decision found that the exhaustion of local

remedies was not necessary for Mexico to bring a claim

before the International Court of Justice. See Avena, at

q{ 40. However, this Court is adjudicating a claim of an

individual. As such, the exception to the exhaustion of

local remedies for states bringing the claims of their

nationals as a claim of the state itself is not available in

our federal courts.” Exhaustion of local remedies ensures

that international law does not unnecessarily take over

the domestic law of any state. As customary international

law compels this Court to recognize the rule of exhaustion

of local remedies as binding,” it is important for this Court

to adopt a procedural rule that gives effect to that binding

international requirement.

“Local remedies” included “the whole system of legal

protection, as provided by municipal law,” including “the

use of procedural facilities which municipal law makes

* The finding by the Avena court that such an exception to the

general rule of exhaustion of local remedies applied is neither new nor

novel. International law has consistently recognized the right of a State

to bring a claim on behalf of its citizens as a claim of its own before

international tribunals. See, e.g., Barcelona Traction, Light and Power

Co. (Belgium v. Spain) 1970 LC.J. 3.

" See The Paquete Habana, 175 U.S. 677, 700 (1900).

RS

OF" yhert ee

13

available to litigants.” Ambatielos Case (Greece v. U.K.),

1951, 12 R.Int’l Arb. Awards 91, 120, 122. Thus, this Court

should exhaustively analyze every domestic remedy

available in any case before resorting to international

sources to identify remedies. In the present case, there are

purely municipal or domestic remedies already available.

In addition, there are no international sources identifying

specific individual remedies for Article 36 violations.

Plainly, international law compels this Court to decide this

case on purely domestic grounds already developed within

the jurisprudence of this Nation. .

¢

CONCLUSION

The exhaustion of local remedies is required under

customary international law. Our domestic system of

justice provides such an adequate local remedy — our

procedural default rule and its exceptions including

consideration of whether there has been a “miscarriage of

justice.” Each court below satisfied the Avena court’s

recommendation of “review and reconsideration” when

they reviewed Petitioner’s case. In fact, this Court went

even further when it granted cer*»orari. No further remedy

is required under any treaty, custom or the Avena decision.

Replacing adequate domestic law with international law is

unnecessary, unwise, and would actually violate custom-

ary international law.

14

For the foregoing reasons, the Liberty Legal Institute

respectfully requests the Court to affirm the opinion of the

Court of Appeals.

Respectfully #u mitted,

KELLY SHACKELFORD

Counsel of Record

HiraM 8S. SASSER III

JONATHAN M. SAENZ

LIBERTY LEGAL INSTITUTE

903 E. 18th Ste. 230

Plano, TX 75074

(972) 423-3131

Counsel for Amicus Curiae