# Amicus Curiae Brief — Medellin v. Dretke

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0112%3A28

## Record

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

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0112%3A28. Public record. Not legal advice.