Opposition Brief — Sanchez-Llamas v. Oregon

5

Tr. 03/17/98 at 131, 138. Prior to trial, Ms. Gutierrez and

Mr. Konstanty, separately and without hesitation, selected

the petitioner’s photograph from a spread Detective

Richard Cline showed them. Tr. 03/18/98 at 39, 41-42; Tr

03/18/98 at 21-22, 28. Ms. Landaeta went to the same

school as Mr. Bustillo, where she would see him every day

because she shared a class with him. Tr. 03/18/98 at 20-21.

She also knew that Mr. Bustillo lived approximately five

minutes from the Popeye’s restaurant, and she, Ms.

Gutierrez, and another friend showed the police to his

home. Tr. 03/18/98 at 22-23, 43, 67.

b. Mr. Bustillo’s Defense

Mr. Bustillo claimed that a gang member nicknamed

Sirena was responsible for the attack. Amilcar Amaya,

who had been a member of Mr. Bustillo’s gang, said he

observed “Sefior Julio,” a/k/a Sirena, walk towards the

area where Mr. Merry was standing. Tr. 03/18/98 at 90, 98-

99. According to Mr. Amaya, when Sirena was close, he

moved to the right, took out a bat, and hit Mr. Merry on

the side of the head. Tr. 03/18/98 at 100, 110. Mr. Amaya

testified that he did not see Mr. Bustillo there that evening

at all, either inside or outside the restaurant, and stated

that he was the one who shook hands with Mr. Merry

inside the restaurant. Tr. 03/18/98 at 101.

At the time of trial, police did not know Sirena’s

identity. Tr. 03/18/98 at 70. He was referred to by one

witness as having a first name “Julio.” Police spoke with

several individuals but no one could provide them with a

263. He could no longer recall whether Mr. Bustillo had a bat. Tr.

03/17/98 at 264.

6

last name or any information about Sirena. Tr. 03/08/98 at

70.° Moreover, although several individuals had a clear

view of the incident, not a single eyewitness told the police

that Sirena was the one who struck the fatal blow. Tr.

03/18/98 at 53, 67-68, 69.

At the close of the case, the jury deliberated and found

Mr. Bustillo guilty of the murder of Mr. Merry.

c. Post-Trial Motions

Mr. Bustillo, with a new retained attorney, filed a

motion to set aside the jury’s verdict. T.R. at 150-61. He

supplemented this motion with an addendum. T:R. at 162-

68. In that motion, he alleged: (1) insufficient evidence; (2)

newly discovered evidence through “new” witnesses

(Giovany Hernandez, Marvin Escobar and Jose

Maldonado), and “false trial testimony” (Valeria Lan-

daeta); (3) “illegally obtained evidence” in the form of

alleged threats by Detective Cline to Nicholas Parada, and

(4) a Brady violation, for the alleged nondisclosure of an

allegedly exculpatory statement from Yahayra Quierolo.

~ The trial court held a hearing on the motion. Among

other witnesses, Ms. Landaeta testified to the extensive

pressure placed on her by a gang member to recant her

testimony. Tr. 07/13/98 at 180-82, 211. The trial court

denied the motion, finding that the allegations of police

misconduct were not credible. Tr. 07/13/98 at 246-69. Mr.

Bustillo then filed a renewed motion to set aside the

* Sirena is referred to variously as Julio Sorto, Tr. 03/18/98 at 70;

Ostorto, Julio, H.R. 402-03; Osorto, Julio C., H.R. 366-67; and Julio

Cesar Osorto Herrera, T.R. 381, 390.

verdict, claiming still more newly discovered evidence and

further allegations of police misconduct. T.R. 209-14. The

trial court again denied the motion. T.R. 234-39.

3. The Appeals

Mr. Bustillo then appealed his conviction with the

assistance of retained counsel. Virginia’s intermediate

appellate court, the Court of Appeals, affirmed. See Busti-

llo v. Virginia, 2000 WL 365930, April 11, 2000 (Va. App.

2000) (unpublished). The Supreme Court of Virginia

affirmed the decision without comment. See Bustillo v.

Virginia, No. 001110 (Va. 2000) (unpublished). This Court

also declined to review the decision. See Bustillo v. Vir-

ginia, 532 U.S. 1072 (2001).

4. State Habeas Corpus Petition

Finally, Mr. Bustillo, again with the assistance of

retained counsel, filed a petition for a writ of habeas

corpus in the trial court. He made two types of claims.

First, he alleged his rights under the Vienna Convention

on Consular Relations (Vienna Convention) were violated.

* As an exhibit to his habeas corpus petition, Mr. Bustillo produced

a videotape, obtained by Commerce Street Locos Gang member Reniery

Alexis Espinoza Maradiaga, a/k/a Selwin Santa Maria. Mr. Maradiaga

claims he surreptitiously videotaped “Sirena.” Hab. Pet. Ex. 9; Hab.

Pet. Ex. 4. This conversation took place in Honduras. Hab. Pet. Ex. 9B.

In the videotape, Sirena says he was the one who struck the blow that

killed James Merry. Hab. Pet. Ex. 9, p. 4. After some prodding, Sirena

recalled that he was wearing a red sweater. Hab. Pet. Ex. 9, p. 3, 7. Mr.

Maradiaga edited the tape so Sirena’s location would not be deter-

mined. Hab. Pet. Ex. 9B. This “confession” was taped in late November

of 1998, and affidavits to authenticate it were sworn in January of

1999. Hab. Pet. Ex. 9B.

8

He also alleged that his attorney was ineffective in a

number of particulars and the prosecution and police had

engaged in numerous acts of misconduct. H.R. at 1-63. In

one of his claims of prosecutorial] misconduct, Mr. Bustillo

asserted that the prosecution possessed and withheld a

photograph of “Sirena.” H.R. at 39-40.

a. The Vienna Convention Claim

On May 3, 2002, Mr. Bustillo filed an “addendum”

seeking to “augment” his habeas petition. He alleged that

the Vienna Convention obligation was “absolute and non-

delegable” but argued, in the alternative, that his retained

counsel was ineffective for failing to advise Mr. Bustillo of

his right to consult with the Honduran consulate_H.R. at

158. He later filed a motion for leave to amend his petition

on this ground. H.R. at 254. The Director objected on the

ground that this amendment did not “relate back” to the

original claims and was barred by the statute of limita-

tions. Virginia Code § 8.01-654(A)(2). H.R. at 272.

On August 8, 2002, the trial court dismissed the

Vienna Convention claim based on Slayton v. Parrigan,

205 S.E.2d 680, 682 (Va. 1974), holding that the

“(pletitioner had ample time to raise the issue at trial or

on appeal.” Pet. App. at 47. The order did not address the

“addendum” or requested amendment seeking to raise a

claim of ineffective assistance of counsel for failing to

inform Mr. Bustillo of his Vienna Convention rights. The

Director filed a motion for clarification, with an affidavit

from trial counsel, asking the court to rule on this claim.

(H.R. 310). Mr. Bustillo’s trial counsel explained in his

affidavit that he was the son of a diplomat and was aware

of the Vienna Convention. He deliberately did not advise

his client of the Vienna Convention because he did not

9

want his client to speak to anyone for fear that these

conversations might then be used against him at trial.

H.R. at 318-19. The trial court entered an order amending

the memorandum opinion on October 11, 2002, holding that

the requested amendment was barred by the statute of

limitations and, furthermore, had no merit under Strick-

land v. Washington, 466 U.S. 668, 687 (1984). H.R. at 351.

b. The Brady Claims

In its August 18, 2002 order, the trial court also

dismissed most of the habeas claims related to the alleged

misconduct. Pet. App. at 38-48. However, the trial court

also ordered an evidentiary hearing limited to the issue of

when the prosecutor came into possession of a photograph

and a videotape of Sirena. Pet. App. at 48-49. The trial

court later entered a discovery order requiring the respon-

dent to produce “the photograph of ‘Sirena’ a/k/a Julio

Cesar Osorto Herrera ... and any information possessed

by the Fairfax Police Department pertaining to Sirena,

a/k/a Julio Cesar Osorto Herrera.” H.R. at 348.

In response, the Director produced several letters and

exhibits including (1) a police report from Officer Mahoney

and (2) notes from the lead detective of an interview with

one of the members of Mr. Bustillo’s gang, Amaya Canas.

H.R. 365.’

* Two documents disclosed to the petitioner in discovery are at

issue. The first is a police report from Officer Mahoney dated December

10, 1997. The Mahoney report notes that “Osorto, Julio C.” was stopped

during a canvass of the area following the attack. The report notes that

“Mr. Osorto has what appeared to be ketchup on his pant legs and a

little on his shirt. He claimed he had come from McDonald's where he

had eaten a cheeseburger.... He stated he lived at Chelsey Square

(Continued on following page)

10

Following the evidentiary hearing on December 5,

2002, the trial court denied habeas relief, holding that the

undisclosed documents were not material. H.R. 454-58. On

February 21, 2003, the trial court entered a final order to

that effect. H.R. 468-69.

Mr. Bustillo next filed a motion to reconsider and a

motion for another evidentiary hearing based on the police

documents disclosed in habeas discovery. H.R. 481. The

trial court overruled the Director’s objections and stayed

its final order. H.R. 471, 472-74. Mr. Bustillo subsequently

filed motions to amend his petition to include a new Brady

claim for failure to disclose these documents.

By letter opinion dated September 16, 2003, the trial

court concluded that the information contained in the

Mahoney report and the interview of Amaya Canas were

exculpatory and should have been disclosed. Concerning

Officer Mahoney’s report, the trial court noted, in hind-

sight, that the officers “should have known, given the

contents of the investigative notes and the police report,

Apartments, but was confused on the address.” He denied being present

at the Popeye’s. Osorto was-described as wearing a “Blk leather Jacket,

Blue Jeans.” H.R. 366-67.

The Director also disclosed police notes of an interview with a gang

member, Jose Armando Amaya (Canas). Although these notes are

described in part in the memorandum opinion of the court, the actual

notes are not a part of the habeas record as Mr. Bustillo never moved

for their admission. Pet. App. at 5 n.6. In the notes, Mr. Canas states

that he observed Sirena running with a “cocked” bat towards Mr. Merry

but that he could not see who struck Mr. Merry. At trial, the prosecution

had disclosed in a discovery response that this witness told law

enforcement that he saw the defendant and Sirena at the scene and

both had bats. Both Mr. Bustillo and Sirena approached the victim with

Sirena following Mr. Bustillo. Mr. Canas’ view was obstructed by a brick

pillar and he couldn’t tell which one struck the victim. T.R. at 17.

11

that ‘Sirena-Julio’ and Julio Osorto might be one and the

same person.” H.R. 486 (emphasis added). The court

granted the motion for reconsideration and ordered a

hearing to determine whether a reasonable probability

existed that “had the evidence been disclosed to the

defense, the result of the criminal trial might have been

different.” H.R. at 491.

Following an evidentiary hearing on April 7, 2004, the

court issued a detailed memorandum opinion concluding

that even if the evidence had been disclosed to Mr. Busti-

llo, there was no reasonable likelihood of a different

outcome. Pet. App. at 3-16.

5. Appeal of the Denial of the State Habeas Petition

Mr. Bustillo petitioned the Supreme Court of Virginia

to hear his appeal of the denial of the habeas petition.

With respect to the Vienna Convention claim, the Supreme

Court of Virginia held that “there is no reversible error in

the judgment complained of....” Pet. App. at 1. As to the

Brady claims, the court dismissed “the petition for appeal

as to those assignments of error” because Mr. Bustillo

“failed to file the habeas proceeding transcript(s).” Pet.

App. at 1. This Petition followed.

4

REASONS FOR DENYING THE WRIT

Certiorari should be denied for two reasons. First, this

Court should decline to review the Vienna Convention

issue because this is an inappropriate vehicle to resolve

the questions. Mr. Bustillo’s claim is barred by the Teague

rule. Moreover, in deciding the Vienna Convention issue,

the lower court did not address a federal question, but

12

relied exclusively on state law. Furthermore, because there

was no prejudice to Mr. Bustillo, the failure to follow the

Vienna Convention was harmless error.

Second, this Court should decline to review the Brady

claims. Initially, the claims are barred by an adequate and

independent state ground. Moreover, the claims present

nothing more than a routine Brady dispute.

I. THIS COURT SHOULD DECLINE TO REVIEW .

THE VIENNA CONVENTION ISSUE.

As the grant of certiorari in Medellin demonstrates,

the Vienna Convention issue is important. However, this

Petition provides a poor vehicle for resolving the issue.

This is so for three reasons. First, the Teague rule bars Mr.

Bustillo’s claim. Second, the lower court’s resolution of the

Vienna Convention issue was based on state law and did

not involve a federal question. Third, Mr. Bustillo was not

prejudiced by the failure to follow the Vienna Convention.

A. Because His Conviction Became Final Be-

fore the Announcement of a “New” Rule,

the Teague Rule Bars Mr. Bustillo’s Vienna

Convention Claim.

Regardless of whether the Vienna Convention creates

judicially enforceable individual rights and whether the

Vienna Convention requires state courts to ignore their

procedural rules, Mr. Bustillo’s claim is barred by the

Teague rule.

Under this Court’s precedents, a state conviction

cannot be disturbed on federal collateral review based on a

13

“new rule” of federal law — a rule which was announced

after a conviction became final.’ Teague, 489 U.S. at 306-

07. A conviction becomes final when the Court denies

certiorari. See O’Dell v. Netherland, 521 U.S. 151, 157

(1997). Thus, Mr. Bustillo’s conviction buceme final on

June 4, 2001, when this Court denied ««rtiorari. See

Bustillo, 532 U.S. at 1072. Therefore, Mr. Bustillo can

obtain habeas relief only if he can demonstrate that the

rule he seeks to enforce — that the Vienna Convention

creates judicially enforceable individual rights — existed

prior to June 4, 2001.

Mr. Bustillo cannot meet this burden. First, this Court

has never held that the Vienna Convention creates judi-

cially enforceable individual rights. Indeed, Mr. Bustillo

expressly urges this Court to overrule its decision in

Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam),

and adopt a new rule. Cert. Pet. at 19. Second, even if

Avena and LaGrand are regarded as announcing a new

rule binding’on this Court and the lower courts, both of

those decisions were rendered after Mr. Bustillo’s convic-

tion became final.* Avena was decided more than two years

after Mr. Bustillo’s conviction became final - and more

than six years after his trial. LaGrand was decided on

* Indeed, the Teague rule was one reason why this Court dismissed

the Writ in Medellin. See Medellin, 125 S. Ct. at 2091.

* On March 7, 2005, President Bush, through his Secretary of

State, notified the United Nations that the United States had

formally withdrawn from the jurisdiction of the International Court of

Justice (ICJ) in disputes over Vienna Convention claims. http://www.

discourse.net/archives/2005/03/us_announces_withdrawal_from_consular_

convention.html. Thus, whatever argument existed previously that the

International Court of Justice’s decisions were binding on United States

courts is now largely academic.

14

June 27, 2001, just over three weeks after this Court

denied certiorari. Thus, Teague precludes relief.”

If this Court is going to determine whether the Vienna

Convention creates judicially enforceable individual rights,

it should do so in a case where the conviction is not final. In

other words, any new rule should come in a case on direct

appeal, not a habeas corpus petition. Because Mr. Bustillo’s

conviction is final, his Petition should not be the mecha-

nism for resolving the issue. Certiorari should be denied.

B. Because the State Court’s Decision Re-

garding the Vienna Convention Issue

Rested Exclusively on State Law, Certio-

rari Review Is Inappropriate.

Regardless of whether the Vienna Convention creates

a judicially enforceable right or whether the Teague rule

applies, the lower court’s resolution of the Vienna Conven-

tion issue did not involve a federal question. To explain, it

is essential that this Court understands the nature of the -

judgment below. Neither the trial court nor the Supreme

Court of Virginia interpreted the Vienna Convention.

Rather, both lower courts simply held that, as a matter of

state law, the Vienna Convention claim was not cognizable

in a Virginia habeas corpus proceeding. Because the

decision regarding the Vienna Convention issue did not

address a federal law question and relied exclusively on

* Although most cases applying Teague have involved a federal

habeas petition, nothing in the Court’s reasoning limits the holding in

Teague to that situation. The Teague Court plainly held that, subject to

limited exceptions, new rules “will not be applicable to those cases

which have become final before the new rules are announced.” Teague,

489 U.S. at 310.

15

state law, there is no basis for this Court to review the

decision. See Volt Info. Scis., Inc. v. Board of Tr. of Leland

Stanford Jr. Univ., 489 U.S. 468, 474 (1989) (“this Court

does not sit to review” questions of state law).

As with other extraordinary writs, Virginia law

narrowly delineates the scope of the writ of habeas corpus.

See Virginia Code §§ 8.01-635 through 668. Under long-

standing Virginia law, “a claim that could have been

raised at the criminal trial or on direct appeal is not

cognizable in [state] habeas corpus [proceedings].... ”

Henry v. Warden, 576 S.E.2d 495, 496 (Va. 2003) (empha-

sis in original and added, respectively). “Because allega-

tions of trial court error are not cognizable by habeas

corpus, habeas cannot be used as a substitute for an

appeal.” Dodson v. Director, 355 S.E.2d 573, 575 n.4 (Va.

1987) (internal citations omitted). Indeed, absent a show-

ing of ineffective assistance of counsel, a Virginia trial

court errs in even “permitting inquiry” on a question that

could have been raised at trial and pursued on appeal.

Slayton, 205 S.E.2d at 682. In other words, as a matter of

state law, Virginia’s state courts’ authority to issue a writ

of habeas corpus is limited to: (1) claims that could not

have been raised at trial or on direct appeal, (2) lack of

subject matter jurisdiction and (3) claims of ineffective

assistance of counsel.

As a matter of state law, Mr. Bustillo utilized a pro-

ceeding that could not reach the Vienna Convention issue

he raised.” In dismissing the Vienna Convention claim,

the Virginia courts relied exclusively on state law. Virginia

* Mr. Bustillo was not without a remedy in state court. He could

have pursued a claim that his attorney was ineffective for failing to

raise the issue. However, he abandoned that claim in state court.

16

courts did not, and indeed could not, as a matter of state

law reach the question Mr. Bustillo sought to raise.”

Because the state court’s judgment rested exclusively on

state law regarding the scope of a state writ of habeas

corpus, review on certiorari is inappropriate.”

Regardless of whether the Vienna Convention creates

judicially enforceable individual rights, and whether Mr.

Bustillo’s claim is barred by the Teague rule, the Vienna

Convention does not require Virginia courts to ignore

Virginia law. Certiorari is barred by an adequate and

independent state ground.

” Furthermore, Mr. Bustillo asks the Court to require state courts

to entertain Vienna Convention claims regardless of any state law

impediments or the nature of the state proceeding below. ‘> accomplish

this end, this Court would have to dictate to state courts the scope they

should attribute to a state law writ. This would constitute an unprece-

dented and, under the federalist structure of our government, an

unconstitutional measure.

” Although review by certiorari is inappropriate, Mr. Bustillo could

obtain review of his Vienna Convention claim by seeking an “original”

writ of habeas corpus in this Court. See Sup. Ct. R. 20.4. While state or

federa] procedural rules may preclude certiorari review of habeas

claims, they do not diminish this Court's ability to review such claims

through an “original” writ of habeas corpus. See Felker v. Turpin, 518

U.S. 651, 661-62 (1996) (“The Act [Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1217 (1996)] does

remove our authority to entertain an appeal or a petition for a writ of

certiorari to review a decision of a court of appeals exercising its

‘gatekeeping’ function over a second petition. But since it does not

repeal our authority to entertain a petition for habeas corpus, there can

be no plausible argument that the Act has deprived this Court of

appellate jurisdiction in violation of Article III, § 2.”). See also id. at 666

(Stevens, J., joined by Souter & Breyer, J.J., concurring) (“As the Court

correctly concludes, the Act does not divest this Court of jurisdiction to

grant petitioner relief by issuing a writ of habeas corpus.”).

17

C. Because Mr. Bustillo Was Not Prejudiced,

the Failure to Follow the Vienna Conven-

tion Was Harmless Error.

Regardless of whether the Vienna Convention creates

judicially enforceable individual rights, whether the

Teague rule applies, or whether the Vienna Convention

requires state courts to ignore their own procedural rules,

the failure to follow the Vienna Convention was harmless

error. Quite simply, Mr. Bustillo was not prejudiced by the

arresting officers’ failure to follow the Vienna Conven-

tion.”

To explain, Mr. Bustillo asserts that the failure to

follow the Vienna Convention harmed him in three ways.

First, he asserts that if the Honduran consular officials

had been alerted, they could have obtained confirmation of

the identity of Sirena and produced a photograph. Indeed,

Mr. Bustillo claims that “when confronted with the photo

of Sirena later provided by the Honduran government,

several witnesses identified Sirena as the individual who

struck [Mr.} Merry.” Pet. at 24. Second, Mr. Bustillo asserts

that the Honduran consulate would have provided confir-

mation that Sirena was on the flight to Honduras, in

support of the trial testimony provided by Ulma Martinez.

Tr. 03/18/98 at 167-68. Mr. Bustillo believes that Sirena’s

* Moreover, it is unclear that Mr. Bustillo would have availed

himself of his Vienna Convention rights if he had been advised of those

rights. Although Mr. Bustillo insists that the Director “has never

disputed petitioner’s sworn statement that ... he would have requested

to speak with consular officials,” Pet. at 23 n.6, this is inaccurate. In the

motion to dismiss, the Director denied each allegation not specifically

admitted in the motion. Since the factual aspects of the Vienna

Convention claim have not been developed, the veracity of Mr. Bustillo’s

assertion has never been tested.

18

travel to Honduras constitutes “powerful evidence” of

Sirena’s guilt, for “[t]he guilty ‘flee when no man pur-

sueth.’” Pet. at 22-23 (quoting Proverbs 28:1). Finally, Mr.

Bustillo claims that, if the Honduran authorities had been

involved, the videotaped “confession” of Sirena might have

~ been obtained prior to trial and would have altered the

outcome.” The Director disagrees with each of these

assertions.

1. Obtaining the Photograph Before Trial

Would Not Have Altered the Outcome.

Obtaining the photograph before trial would not have

altered the outcome. The proffered testimony in the

affidavits attached to the habeas petition is utterly unwor-

thy of belief by any reasonable fact-finder. The witnesses

Mr. Bustillo relies on consist chiefly of a parade of obvi-

ously biased gang members: Amilcar Amaya, Lisandro

Parada, Marvin Escobar, and Godofredo Jimenez. T.R. at

465; Tr. 03/18/98 at 90-91; Tr. 07/13/98 at 39, 54. All of

these “witnesses” have provided conflicting accounts and

have shown what could charitably be described as a

remarkable flexibility in their recollection. This flexibility

would have been obvious to any fact-finder.

When interviewed by trial counsel, Mr. Escobar - who

had known Sirena for three years and Mr. Bustillo for one

“ Mr. Bustillo also suggests that had he been informed of his

Vienna Convention rights, the Honduran police might have obtained a

surreptitiously videotaped confession from Sirena such as the one he

proffered in the habeas corpus proceeding. However, Mr. Bustillo

himself had to obtain this purported confession; nothing in the record

suggests the police would have done so, or that it could have been done

in time to assist him athistrial. —

19

year — said he did not know who struck the blow. Tr.

07/13/98 at 94-95. By the time of the post-trial motion to

reconsider, Mr. Escobar was sure it was Sirena. Tr. 07/13/98

at 43. Following the second habeas hearing, the trial court

found Amilcar Amaya’s testimony was not credible and

specifically noted his inconsistencies. Pet. App. at 11. Mr.

Jimenez, contrary to his more recent version, told the police

that Mr. Bustillo was present — undermining Mr. Bustillo’s

alibi — and that he did not_see who committed the assault.

(Resp. Mot. to Dismiss Ex. 1, J 2).

Claudia Tafur, Esmirna Christina Hondoy, and Ya-

hayra Queirolo also provided affidavits in support of the

habeas petition. Each also identified Sirena from the

photograph as the assailant. T.R. at 285, 388, 392, 497.

Although they are not gang members, their testimony is

also vacillating and implausible. Ms. Tafur said on the

evening of the attack, December 10, 1997, that Mr. Busti-

llo was the assailant. T.R. at 285. Ms. Tafur knew Sirena

because she previously dated him and she went to school

with Mr. Bustillo. T.R. at 388. A year and a half later, on

June 16, 1999, she had come to understand that she “did

not see enough of the assailant’s face to be able to accu-

rately concluse [sic] who it was.” T.R. at 285. By December

18, 2001, four years after the attack, her memory had

improved to the point where she now knew that Sirena

was really the assailant. T.R. at 388.

Ms. Hondoy noted in her habeas affidavit that the

photograph of Julio Osorto Herrera “resembles the person

who struck Merry.” T.R. at 392. However, she told the

police the day after the attack that she knew Mr. Bustillo

and that she saw him strike Mr. Merry with the bat. Tr.

03/18/98 at 188-90; T.R. at 180. Following the attack, she

obtained money from the petitioner's father. Tr. 03/18/98 at

20

149-50. By the time of trial, she was sure Mr. Bustillo was

not the assailant. Tr. 03/18/98 at 142-43. At that point, she

had “no idea who the person is” that attacked Mr. Merry. Tr.

03/18/98 at 142-43. She also could not recall whether she

told the police she knew Mr. Bustillo. Tr. 03/18/98 at 157.

Ms. Queirolo told Detective Cline that she saw Mr.

Bustillo swing the bat, but did not see the actual impact.

T.R. 179. She said she had known Mr. Bustillo for a year,

and had seen him at “parties and stuff.” Trial exhibits,

Def. Ex. I; Tr. 06/17/98 at 12; T.R. at 467. Ms. Queirolo said

she knew Sirena because one of her friends used to date

him. T.R. at 467. Several weeks before trial, she became

unsure, but she said the assailant “could be” Mr. Bustillo.

Tr. 06/17/98 at 13-14. Three and a half years later, she had

become convinced the attacker was Sirena. T.R. at 467.

Given these circumstances, there is no reasonable

probability that any reasonable fact finder would credit

such inconsistent testimony. Indeed, it would likely

strengthen the fact finder’s conclusion that Mr. Bustillo

was guilty. At the hearing on the motion to reconsider the

verdict, the trial court made this observation, noting that

adducing testimony from such witnesses “if anything, it

may have produced a more harsh result... . ” Tr. 07/13/98

at 260-61. Moreover, these witnesses were all known to

trial counsel, who made a tactical decision not to call

them. H.R. 242-46; Tr. 06/17/98 at 14; Tr. 07/13/98 at 92-

93, 102. Since the witnesses were purposefully not called

at trial, Mr. Bustillo’s claim of prejudice evaporates. In

addition, Mr. Bustillo obtained a photograph of Sirena

nearly three months before the trial court entered its final

order. Tr. 07/13/98 at 143-45; T.R. at 244. If he wanted to

test the recollection of the witnesses with that photograph,

he certainly had the opportunity to do so before final

21

judgment. He did so with Ms. Queirolo in a post-trial

hearing. Tr. 06/17/98 at 8-10. Mr. Bustillo chose to forego

the opportunity with other witnesses. Finally, since the

vast majority of these witnesses knew Sirena, some of

them over a period of years, or shared membership in the

Commerce Street Locos gang, or even dated him, it is

difficult to comprehend why a photograph was so neces-

sary for identification.

2. Confirmation of Sirena’s Flight Would

Not Have Altered the Outcome.

Confirmation of Sirena’s flight to Honduras would not

have altered the outcome. If, as Mr. Bustillo asserts,

Sirena was not only present at the crime scene but also

running behind Mr. Bustillo, bat in hand, toward the

victim, he was as guilty as the perpetrator in the eyes of

the law. See Taylor v. Virginia, 537 S.E.2d 592, 594 (Va.

2000); Moehring v. Virginia, 290 S.E.2d 891, 892 (Va.

1982). The police had stopped and questioned Julio Osorto

on the night of the attack. Therefore, assuming Mr. Osorto

and Sirena are the same, he had a compelling motive to

flee, regardless of the petitioner’s guilt.

Moreover, at trial, Ms. Martinez testified without

contradiction that Sirena had left the United States

shortly after the attack. Tr. 03/18/98 at 167-69. Further

minimizing any prejudice along these lines, Detective

Cline confirmed that Sirena could not be found in the

weeks following the attack. Tr. 03/18/98 at 70-71. Mr.

Amaya also said he had not seen Sirena since the assault.

Tr. 03/18/98 at 101-02: Additionally, Mr. Bustillo’s counsel

was aware of other witnesses who could have placed

Sirena at the crime scene and corroborated his existence,

22

including Mr. Canas, who told the police he saw Sirena

“cock” the bat. However, Mr. Bustillo’s counsel made a

strategic decision not to call those witnesses owing, in

part, to their “dubious credibility.” Pet. App. at 14, n.43.

Finally, this tangential information, a photograph and

confirmation of the flight, do not alter the fundamental

evidence against the petitioner: three eyewitnesses, two of

whom knew Mr. Bustillo, who had seen him enter the

restaurant moments before the attack, identified him in

good light as the assailant. In contrast, Mr. Bustillo’s

inconsistent and biased witnesses have failed to convince

each time they have been called to testify.

3. Sirena’s “Confession” Would Not Have

Altered the Outcome.

Sirena’s “confession” would not have altered the

outcome. Even if the “confession” could have been pro-

cured in time for use at trial, a most doubtful proposition,

it would not have been admissible under state or federal

law. Although both this Court and the Supreme Court of

Virginia have allowed the admissibility of third party-

confessions, see Chambers v. Mississippi, 410 U.S. 284,

287-89 (1973), Hines v. Virginia, 117 S.E. 843, 845 (Va.

1923), such evidence was held to be admissible only in

circumstances that strongly suggested the reliability of the

third-party confession: the confession was made repeat-

edly to neutral witnesses who were available to testify. In

this instance, “Sirena,” a member of the Commerce Street

Locos gang who is beyond the reach of cross-examination,

supposedly provided a videotaped statement at the prod-

ding of another gang member, for the benefit of an incar-

cerated member of his gang. No Virginia court would

admit a third-party confession under such circumstances.

23

In sum, even if Mr. Bustillo had been aware of his

right to contact consular officials and had done so, the

outcome would not have been different. The failure to

follow the Vienna Convention was harmless error. If this

Court is going to decide whether the Vienna Convention

creates judicially enforceable individual rights, it should

do so in a case where the answer to that question actually

matters.” It should not do so in a case, such as this one,

where the failure to follow the Vienna Convention viola-

tion is harmless error. Certiorari should be denied.

Il. THIS COURT SHOULD DENY REVIEW OF

THE BRADY CLAIMS.

Regardless of whether this Court grants certiorari on

the Vienna Convention issue, it should deny certiorari on

the Brady claims. This is so for two reasons. First, there is

an adequate and independent state ground for dismissal of

the Brady claims. Second, regardless of whether there is

an adequate and independent state ground, Mr. Bustillo’s

Brady claims are routine and unworthy of this Court’s

review.

* Moreover, this Court should wait for further developments in the

lower courts and foreign courts. Since the dismissal of the Writ in

Medellin, there is no published authority from any court — state or

federal — addressing whether the Vienna Convention creates judicially

enforceable individual -ights. Nor does Mr. Bustillo offer any authority

from signatory states to the Vienna Convention adopting or rejecting

Avena’s reasoning.

24

A. There Is an Adequate and Independent

State Ground for Dismissal of the Brady

Claims.

In Coleman v. Thompson, 501 U.S. 722 (1991), this

Court summarized its longstanding jurisprudence and

emphasized that:

This Court will not review a question of federal

law decided by a state court if the decision of that

court rests on a state law ground that is inde-

pendent of the federal question and adequate to

support the judgment.... This rule applies

whether the state law ground is substantive or

procedural.... In the context of direct review of

a state court judgment, the independent and

adequate state ground doctrine is jurisdictional.

Because this Court has no power to review a

state law determination that is sufficient to sup-

port the judgment, resolution of any independent

federal ground for the decision could not affect

the judgment and would therefore be advisory.

Id. at 729 (citations omitted). In other words, this Court

will not review a decision of a state court which is based

on state law — whether it is substantive or procedural.

In the present Petition, the lower court dismissed Mr.

Bustillo’s Brady claims because he had not timely filed the

transcripts of the evidentiary hearing, a violation of

Virginia Supreme Court Rule 5:11(a). Pet. App. at 1. The

procedural bar in question was firmly established and is

regularly followed. See Ford v. Georgia, 498 U.S. 411, 423-

24 (1991) (State procedural default is an “independent and

adequate state procedural bar” barring subsequent federal

review when the state rule was “‘firmly established and

regularly followed’” at the time it was applied.).

25

First, the rule is hardly a new one. See Towler uv.

Virginia, 221 S.E.2d 119, 121 (Va. 1976) (Transcripts that

are indispensable to adjudication which are not properly

made part of the record will result in appeal being dis-

missed.). Furthermore, the rule has been regularly and

consistently applied. Palmer v. Virginia, 609 S.E.2d 308,

309 n.2 (Va. 2005) (noting first appeal was dismissed in

Court of Appeals of Virginia for failure to timely file a

transcript); Henry, 576 S.E.2d at 495 n.2 (same); Turner v.

Virginia, 341 S.E.2d 400, 402 (Va. App. 1986); Barrett v.

Barrett, 339 S.E.2d 208, 209-10 (Va. App. 1986). Indeed,

the Supreme Court of Virginia recently dismissed a habeas

corpus appeal brought by a local government because it

had not timely filed the transcripts. Virginia v. Raja,

Record No. 042846 (Va. July 6, 2005) tinea at http://

www.courts.state.va.us/).

Mr. Bustillo contends that the state court erroneously

applied its own law because the memorandum opinion of

the trial court enabled the appellate court to reach the

issue. The only decision Mr. Bustillo can offer from the

Supreme Court of Virginia is Roe v. Roe, 324 S.E.2d 691,

692 n.1 (Va. 1985), where the Court concluded that the

opinion of the trial court sufficed to allow the appellate

court to reach the issues. What he neglects to mention,

however, is the Court’s observation in Roe that the facts in

that case were “entirely undisputed.” Jd. In the case at

bar, in contrast, the evidence was sharply contested. Roe,

therefore, lends the petitioner no support.

The fact that on rare occasions the transcript is not

necessary to reach the issues does not alter the fact that

the rule is consistently applied. For example, in Wolfe v.

Virginia, 371 S.E.2d 314, 216 (Va. App. 1988), the court

concluded that the record, without the transcript, was

26

sufficient. In so doing, however, the court stated: “[wJe

emphasize that our decision to review this case without a

trial transcript or statement of facts is the rare exception

rather than the general rule. The tria! transcript usually

is indispensable.” Jd. Moreover, the consistent or regular

application of a State’s procedural default rules does not

mean undeviating adherence to such rule admitting of no

exception. See Dugger v. Adams, 489 U.S. 401, 410-12 n.6

(1989) (Despite possible exceptions, the procedural bar at

issue was applied by Florida’s highest court “[iJn the vast

majority of cases.”).

The transcript in this case was indispensable. Pre-

sumably because the petitioner’s own evidence failed to -

establish any materiality, the circuit court’s memorandum

opinion did not discuss the respondent’s evidence. At the

hearing, the respondent adduced evidence from the medi-

cal examiner that performed the autopsy on the victim,

from three firefighters who were at the crime scene and

from one police officer, all of whom testified to the lack of

blood spatter. Finally, one of the officers who detained

Sirena on the night of the attack testified about his obser-

vations of the red “stains” on Sirena. Due to the absence of

transcripts, the Supreme Court of Virginia determined it

could not review this evidence and properly dismissed the

assignments of error that required those transcripts.

B. There Is No Need to Review the State Court’s

Resolution of Common Brady Claims.

Regardless of whether Mr. Bustillo can somehow

evade the adequate and independent state default, he fails

to present any issue beyond a routine dispute concerning

the materiality of certain undisclosed notes from the

27

police. A writ of certiorari will be granted only for “compel-

ling reasons.” Sup. Ct. R. 10. Furthermore, this Court does

not provide case-specific error correction. Overton v. Ohio,

534 U.S. 982, 985 (2001) (Breyer, J.) (statement respecting

denial of certiorari); Calderon v. Thompson, 523 U.S. 538,

569 (1998) (Souter, joined by Stevens, Ginsburg & Breyer,

J.J., dissenting) (noting it is “axiomatic that this Court

cannot devote itself to error correction... . ”).

Nor was there any error in the approach employed by

the trial court. The evidence was uncontested that the

victim was struck once in the head by a bat-wielding

assailant, who immediately fled. Tr. 03/17/98 at 222, 264;

Tr. 03/18/98 at 27, 111. The medical examiner testified

there was no breaking of the skin where the injury took

place. Tr. 03/17/98 at 193. Mr. Bustillo attempted to prove

that the stains on Sirena, which are described by an

experienced police officer as appearing to be ketchup, not

blood, were in reality the victim’s blood. However, he failed

to prove that the victim’s blood, most improbably, immedi-

ately shot out of the victim’s ear on impact and, by amaz-

ing coincidence, landed on the rapidly fleeing assailant, all

without contaminating the baseball bat employed in the

attack. His own expert, as the memorandum of the trial

court reflects, testified at one point that the blow to the

victim’s head would have caused blood to “seep” out of the

victim’s ear. This account, the trial court found, was consis-

tent with the crime scene photographs that display only a

few sizable droplets of blood, but no signs of spatter or spray.

The trial court also did not find credible the inconsistent

28

accounts from the two witnesses who claimed to have seen

the victim’s blood spray on others.”

e

CONCLUSION

The petition for a writ of certiorari should be DENIED.

Respectfully submitted,

JUDITH WILLIAMS JAGDMANN STEPHEN R. MCCULLOUGH

Attorney General of Virginia Assistant Attorney General

WILLIAM E. THRO Office of the Attorney

State Solicitor General General

Counsel of Record 900 East Main Street

Richmond, Virginia 23219

RONALD N. REGNERY ee at pe pe

D. MaTuHIAs Roussy, JR. acsimise: -

Associate State Solicitors Counsel for the Respondent

General

September 23, 2005

ERIc A. GREGORY

* Mr. Bustillo argues that the eyewitnesses who identified him

were mistaken because they made their identification based on the

assailant’s clothes. He claims that Sirena was wearing a red shirt, and

Mr. Bustillo had been seen earlier wearing a red shirt. Pet. App. at 8.

However, the report from Officer Mahoney, the document Mr. Bustillo

claims to be exculpatory, shows that Sirena was wearing a black leather

jacket. If the “red stains” were visible on his shirt, it is most unlikely he

wore anything red under his leather jacket. Therefore, this police report

would have actually undermined the defense theory of mistaken

identification.

No. 05-51 OCT 4 - 2005

ee CLERK

IN THE

Supreme Court of the Anited States

MARIOA. BUSTILLO,

Petitioner,

Vv.

GENE M. JOHNSON, DIRECTOR

OF THE VIRGINIA DEPARTMENT OF CORRECTIONS,

— Respondent.

On Petition for a Writ of Certiorari

to the Supreme Court of Virginia

REPLY BRIEF FOR PETITIONER

JOHN C. KIYONAGA JEFFREY A. LAMKEN

= “er Street Counsel of Record

Suite 213 MARK T. STANCIL

Alexandria, VA 22413 MICHAELG. PATTILLO, JR.

(708) 730-0009 HEATHER M. MCCANN

BAKER Botts L.L.P.

1299 Pennsylvania Ave., NW

Washington, D.C. 20004-2400

(202) 639-7700

Counsel for Petitioner

WitSON-EPES PRINTING CO. INC. = (202) 789-0096 -— VWaSsHINGTON.OC 20001

I.

Il.

TABLE OF CONTENTS

This Case Squarely Presents The Vienna

I Ia icssccsciniictanniiatiitnnicanienpinmniinnse

A. Whether State Procedural Bars May

Preclude Vienna Convention Claims

Is The Very Question Presented By

et i ictcnsssnectanensnenenitesiantancnnninnnnen

B. Respondent’s Effort To Invoke

Teague v. Lane Is Misplaced And

Waived In Any Evennt...............cscccccssessssessees

C. The Violation Of Petitioner’s Vienna

Convention Rights Was Not

ig ETE AL SS OTR

Petitioner’s Brady Claim Is Not

5 EELS DENT EE

(i)

i

TABLE OF AUTHORITIES

CASES

Adams v. Apker, No. 05-2350, 2005 WL

2082919 (3d Cir. Aug. 30, 2005) .........ccscsseseeeeeees

Arizona v. Evans, 514 U.S. 1 (1995) 0.0...

Bieregu v. United States, No. Civ. A. 05-

2692(DRD), 2005 WL 2237686 (D.N.J.

Case Concerning Avena and Other

Mexican Nationals (Mex. v. U.S.), 2004

Bi EA AID cckicdhinentensanisinienisennidudeenaaidaniien

Caspar v. Bohlen, 510 U.S. 383 (1994) ......cccceseevers

Chambers v. Mississippi, 410 U.S. 284

Svea niichniteteectindeicinseiedapuiiiititaiiamanianiancedadainbeiuligitiimanisiiiga

Collins v. Youngblood, 497 U.S. 37 (1990) ........000

Ex parte Grossman, 267 U.S. 87 (1925) ......cecseeeee

Ford v. Georgia, 498 U.S. 411 (1991) .....cceecseseeees

Gomez v. Dretke, No. 04-70047, 2005 WL

1983693 (5th Cir. Aug. 17, 2005).........ccccceseseseeee

Great N. Ry. Co. v. Sunburst Oil & Ref. Co.,

Be i ee Ga cccinitainctittiniininiieenesicamnincianiannseiie

Hines v. Virginia, 117 S.E. 843 (Va. 1923).............

Hopkins v. Reeves, 524 U.S. 88 (1998)........ccccceseeee

Kentucky v. Stincer, 482 U.S. 780 (1987)...

LaGrand Case (F.R.G. v. U.S.), 2001 L.C.J.

a lee

Long v. Dist. Court of Iowa, 385 U.S. 192

iii

TABLE OF AUTHORITIES—Continued

Meadows v. State, 849 S.W.2d 748 (Tenn.

SESS SEETHER HEE EEE EEE EEE EEE EEE EEE EE HEHEHE ER OE EE

Medellin v. Dretke, 125 S. Ct. 2088 (2005)...........

Minnesota v. Nat'l Tea Co., 309 U.S. 551

(1940)

SOS EERSTE SEES EEE EEE EEE EEEEEE SEHR HEHE OS

Mueller v. Murray, 478 S.E.2d 542 (Va.

1996) .

Ortiz v. United States, No. 8:02-CV-905-T-

30TBM, 2005 WL 2129191 (M.D. Fla.

dias Se aicncincsiceriipitrsinbacstiatantanainsacnianinninsveeses

Pennsylvania v. Finley, 481 U.S. 551 (1987).........

People v.

Moreno, No. B177572, 2005 WL

2374746 (Cal. Ct. App. Sept. 28, 2005)...............

People v.

Tapia-Fierro, No. F046280, 2005

WL 2249007 (Cal. Ct. App. Sept. 15,

2005).

Ramirez

v. State, No. S05A0664, 2005 WL

2264638 (Ga. Sept. 19, 2005).....ccccsssssssesesscsesesseee

Roberts v. Galen of Va., Inc., 525 U.S. 249

Roper v. Simmons, 125 S. Ct. 1183 (2005)..............

Rosales v. Bureau of Immigration &

Customs Enforcement, No. 04-10630,

2005 WL 2292526 (5th Cir. Sept. 21,

2005) .

Rosero v.

SOOTHE EEE EEE EEE EEE EEE EEE EE EERE EEE EEE EEE HETERO HE

United States, No.

803CR82T17EAJ, 2005 WL 2372012

(M.D.

Fla. Sept. 27, 2005)....ccccccsssssssssseccecessessessee

Sawyer v. Smith, 497 U.S. 227 (1990) ....cccsccsssecseeseee

Smith v. Bennett, 365 U.S. 708 (1961)... cee

iv

TABLE OF AUTHORITIES—Continued

State v. Whitfield, 107 S.W.3d 253 (Mo.

SEED <cvvansneprensssnemsnessnpnianneititinniiiineiiiieesnibiaateneii

Stringer v. Black, 503 U.S. 222 (1992)...

Teague v. Lane, 489 U.S. 288 (1989)...

Torres v. State, No. PCD-2004-442, 2005

WL 2130195 (Okla. Crim. App. Sept. 6,

SERED crocersereeemnesereveunesssesinnstesimnananniennnnneinisataiiies

United States v. Cobain, No. 04-30412, 2005

WL1901583 (9th Cir. Aug. 10, 2005).............

United States v. Hall, No. CR-03-910 CPS,

2005 WL 1984463 (E.D.N.Y. Aug. 17,

ET sichcscntieinstmieniapaceiialgtaie ta lahat a

Victor v. Nebraska, 511 U.S. 1 (1994).............0..

Wolfe v. Virginia, 371 S.E.2d 314 (Va. App.

SEITE acosccesevesnessenevonnenesnstontaanasenneninenanssiiabenecitiipis

Wright v. Rasbeary, No. 04-11204, 2005 WL

1950779 (Sth Cir. Aug. 16, 2005)...

TREATIES AND RULES

Optional Protocol Concerning the Compul-

sory Settlement of Disputes, Apr. 24,

1963, 21 U.S.T. 325, 596 U.N.T.S. 488:

Fag0, BED sccccevictnsntensetensisistuinictniidiiinaiiadieiadl

Wie, Bh Ga Fe ee vciccctstssieninienccnsintbaiitsinaiiaiaias

Ce Rs ea

We, Bh CRs Bh i ccisecccvcccnpvesissenstiinintitensguitcanmiintan

MISCELLANEOUS

Robert L. Stern et al., Supreme Court

ee | |

REPLY FOR PETITIONER

Respondent concedes the importance of the issues pre-

sented. Br. in Opp. 12. Respondent also admits that the

International Court of Justice (ICJ) twice has “held that the

Vienna Convention on Consular Relations * * * creates judi-

cially enforceable individual rights and that American courts”

may not invoke “procedural rules” to avoid “enforcing those

rights.” Br. in Opp. 1. Respondent does not deny that the

courts of this Nation have reached conflicting results. Pet. 15-

20. Nor does respondent dispute the need for this Court to

issue a definitive interpretation of Article 36 of the Vienna

Convention. /bid. This Court, in fact, granted review to con-

sider these issues in a related context last Term, but was

unable to reach them. Medellin v. Dretke, 125 S. Ct. 2088

(2005). Pet. 20-22; Br. in Opp. 1, 12. Since then, the impor-

tance of this issue has become even more apparent. '

' As set forth in the petition (at 16-18), at least 34 different state and

federal courts have been confronted with Vienna Convention claims,

many repeatedly, without any movement toward a consensus on the

proper construction of Article 36. It is thus unclear what benefit this

Court could derive by “wait[ing] for further developments in the lower

courts and foreign courts.” Br. in Opp. 23 n.16. In fact, at least 13

additional federal and state cases involving Vienna Convention claims

have been decided since this petition was filed on July 5, 2005. Rosales

v. Bureau of Immigration & Customs Enforcement, No. 04-10630, 2005

WL 2292526 (5th Cir. Sept. 71, 2005); Adams v. Apker, No. 05-2350, 2005

WL 2082919 (3d Cir. Aug. 30 2005); Gomez v. Dretke, No. 04-70047, 2005

WL 1983693 (5th Cir. Aue. 17, 2005); Wright v. Rasbeary, No. 04-11204,

2005 WL 1950779 (5th Cir. Aug. 16, 2005); United States v. Cobain, No.

04-30412, 2005 WL1901583 (9th Cir. Aug. 10, 2005); Rosero v. United

States, No. 803CR82T1I7EAJ, 2005 WL 2372012 (M.D. Fla. Sept. 27,

2005); Bieregu v. United States, No. Civ. A. 05-2692(DRD), 2005 WL

2237686 (D.N.J. Sept. 14, 2005); Ortiz v. United States, No. 8:02-CV-905-

T-30TBM, 2005 WL 2129191 (M.D. Fla. Sept. 2, 2005); United States v.

Hall, No. CR-03-910 CPS, 2005 WL 1984463 (E.D.N.Y. Aug. 17, 2005);

People v. Moreno, No. B177572, 2005 WL 2374746 (Cal. Ct. App. Sept.

28, 2005); Ramirez v. State, No. SO5A0664, 2005 WL 2264638 (Ga. Sept.

19, 2005); People v. Tupia-Fierro, No. F046280, 2005 WL 2249007 (Cal.

Ct. App. Sept. 15, 2005); Torres v. State, No. PCD-2004-442, 2005 WL

2130195 (Okla. Crim. App. Sept. 6, 2005).

2

Respondent nonetheless suggests there are barriers to

review in this case. That claim is wholly unpersuasive. In fact,

close review of respondent’s arguments demonstrates that this

case is an ideal vehicle for further review.

I. This Case Squarely Presents The Vienna Convention

Issues

While conceding the importance of the Vienna Convention

issues, Br. in Opp. 12, respondent asserts that this case pre-

sents a “poor vehicle” for resolving them because of (a) a state

procedural bar and (b) the effects of Teague v. Lane, 489 U.S.

288 (1989), an issue respondent never raised below. Neither

claim has merit, and the latter is clearly waived.

A. Whether State Procedural Bars May Preclude

Vienna Convention Claims Is The Very Question

Presented By The Petition

Respondent urges this Court to deny the petition because

the Virginia courts denied the Vienna Convention claims solely

on the basis of state law. Br. in Opp. 14-16. In particular,

respondent points to the state-law procedural bar resulting

from petitioner’s putative failure to raise the Vienna Conven-

tion when he first appealed his conviction. See ibid. But the

validity of such procedural bars against Vienna Convention

claims is one of the very questions presented for this Court’s

review—and one of the issues this Court previously sought to

resolve in Medellin. See Pet. i; Medellin, 125 S. Ct. at 2089.

As respondent concedes, Br. in Opp. 1, the ICJ has held

that States may not invoke such procedural bars because they

violate Article 36 of the Vienna Convention, preventing “‘full

effect [from being] given to the purposes for which the rights

accorded under this article are intended.’” LaGrand Case

(F.R.G. v. U.S), 2001 1.C.J. 466, 1 91 (June 27) (quoting

Vienna Convention, art. 36(2), 21 U.S.T. at 101); Case Con-

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

2004 I.C.J, 128, 4 113 (Mar. 31) (similar); see Pet. 15-16. The

question presented below to the Virginia courts, and now to

this Court, is whether Article 36 of the Vienna Convention—a

federal treaty that supersedes inconsistent state laws under

3

the Supremacy Clause—requires Virginia to provide a forum

for Vienna Convention claims despite the Commonwealth’s

procedural default rules. As in Medellin, “the relevant federal

question [is] whether, under Article 36(2), the treaty overrides

state procedural default rules.” 125 S. Ct. at 2099 (O’Connor,

J., dissenting). In the decision below, the Virginia Supreme

Court answered that question in the negative, finding “no

reversible error” in the circuit court’s invocation of Virginia’s

procedural default rules (despite petitioner’s invocation of the

Vienna Convention and the ICJ’s decisions interpreting it).

Pet. App. la; Pet. for Review 14-15, 32-33 (Va. S. Ct., filed

Sept. 3, 2004). The question presented here is whether that

ruling—an issue of federal law involving the construction of an

international treaty—was correct.

B. Respondent’s Effort To Invoke Teague v. Lane Is

Misplaced And Waived In Any Event

Respondent also urges (Br. in Opp. 12-14) that Teague v.

Lane precludes this Court from addressing the Vienna Con-

vention issues because their resolution might require the

Court to announce a “new rule” of criminal procedure. As ex-

plained infra (at 6-7), respondent never asserted Teague argu-

ments (or any retroactivity claim) below, despite ample oppor-

tunity to do so. As a result, that claim is waived. Moreover,

Teague is wholly inapposite. That case articulates a rule

applicable to courts on federal habeas review. It does not

purport to address the applicability of federal law in state

habeas proceedings or in this Court on direct review of those

state proceedings.

1. Setting aside (for the moment) respondent’s clear

waiver of the Teague objection, Teague has no application

here. In Teague, this Court declined to consider a novel Sixth

Amendment claim raised for the first time in federal habeas

corpus proceedings. The Court held that federal “habeas

corpus cannot be used as a vehicle to create new constitutional

rules of criminal procedure,” subject to two exceptions. 489

U.S. at 317. The Court implemented the Teague rule to

recognize the more deferential “purpose of federal habeas

corpus,” Sawyer v. Smith, 497 U.S. 227, 234 (1990) (emphasis

4

added), and repeatedly has characterized Teague as a decision

regarding the scope of federal habeas review of state

convictions. See, e.g., Beard v. Banks, 124 S. Ct. 2504, 2511

(2004); Caspari v. Bohlen, 510 U.S. 388, 389 (1994); Stringer v.

Black, 503 U.S. 222, 227-228 (1992). As respondent admits,

Teague established that “a state conviction cannot be dis-

turbed on federal collateral review based on a ‘new rule’ of

federal law.” Br. in Opp. 12-13 (emphasis added).

This case, however, does not arise on federal habeas

review. It arises on this Court’s direct review of a state habeas

decision. Respondent does not explain why Teague would

apply in that context. And this Court has never applied

Teague on direct review of state habeas proceedings. To the

contrary, this Court has repeatedly considered “new rules” on

review of state habeas decisions without even mentioning

Teague. See, e.g., Roper v. Simmons, 125 S. Ct. 1183 (2005);

Victor v. Nebraska, 511 U.S. 1 (1994). Roper, for example,

announced that the Constitution forbids imposition of the

death penalty on an offender who was under the age of 18 at

the time of the offense—a rule so “new” that it required the

Court to overrule a prior decision. See Roper, 125 S. Ct. at

1192. Even though Roper arose on direct review of a state

habeas decision, this Court’s decision never so much as men-

tioned Teague, and with good reason: Teague is a rule about

federal habeas—not state habeas.

Respondent’s effort to impose Teague on state habeas is

fundamentally at odds with the principles of federalism

undergirding that decision. Subject to the Supremacy Clause

(and the constitutional and treaty obligations that follow), the

scope of state habeas is primarily an issue of state law. This

Court decided Teague as a matter of federal common law (or

perhaps as a construction of the federal habeas statute), not

constitutional law. As a result, there is no basis for requiring

its application to state habeas proceedings. See State v. Whit-

field, 107 S.W.3d 258, 267 (Mo. 2003) (holding that Teague

does not apply on state habeas); Meadows v. State, 849 S.W.2d

748, 755 (Tenn. 1993) (same). It would be ironic if Teague,

which was founded on principles of federalism, were applied to

5

preclude the States from choosing to give retroactive effect to

this Court’s decisions in state habeas proceedings. Cf. Great

N. Ry. Co. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 364 (1932)

(“A state in defining the limits of adherence to precedent may

make a choice for itself between the principle of forward

operation and that of relation backward.”).

Nor is there any basis for applying Teague to this Court’s

direct review of state court habeas decisions that, without

addressing retroactivity, resolve important issues of federal

law. See, e.g., Roper, 125 S. Ct. at 1189; Victor, 511 U.S. at 18-

19. Where state courts choose to address issues of federal law,

their decisions are subject to review by this Court. There is no

principled basis for declaring that state courts may address

important issues of federal law but then preclude this Court’s

direct review of the resulting decisions. E

Respondent’s novel expansion of Teague would also lead to

anomalous results. It would effectively foreclose this Court’s

review of a host of claims that can be raised only on collateral

review, such as ineffective assistance of counsel, as well as

challenges to the constitutionality of state habeas procedures.

Once a state establishes its own habeas procedures, they are

subject to constitutional scrutiny in this Court. See Pennsyl-

vania v. Finiey, 481 U.S. 551 (1987); Long v. Dist. Court of

Iowa, 385 U.S. 192 (1966); Smith v. Bennett, 365 U.S. 708

(1961). The validity of a state habeas procedure (here, the

invocation of a procedural bar to preclude review of a federal

treaty violation) cannot be raised on direct review, because the

issue would not be ripe. Accordingly, this Court must be able

to review such a claim on direct review of state habeas

decisions. Arizona v. Evans, 514 U.S. 1, 9 (1995) (“‘important

federal issues * * * will reach this Court for adjudication’”;

“state courts will not be the final arbiters of important issues

under the federal constitution’”) (quoting Minnesota v. Nat'l

Tea Co., 309 U.S. 551, 557 (1940)).?

* Respondent posits that prisoners may petition this Court for an

extraordinary writ, Br. in Opp. 16 n.13, but this Court’s power to issue

an “original” writ is greatly circumscribed; no petitioner has obtained

6

The effort to apply Teague to preclude consideration of

petitioner’s Vienna Convention claims, moreover, suffers from

the same defect as the Commonweaith’s invocation of its own

procedural bar. If the Vienna Convention precludes States

from invoking procedural bars where doing so prevents “‘full

effect [from being] given to the purposes for which the rights

accorded [by Article 36 of the Vienna Convention] are

intended’”—as the ICJ has held—then the same is true of

efforts to invoke Teague to prevent consideration of otherwise

meritorious Vienna Convention claims. Respondent’s Teague

argument thus begs precisely the same question as the

procedural bar argument—whether procedural rules that

allow courts to refuse to hear Vienna Convention claims are

consistent with Article 36(2). Thus, far from precluding the

Court from reaching the questions presented, petitioner’s

novel Teague argument underscores their importance.

2. Merits aside, this Court need not address the Teague

argument because respondent waived it. Teague is not juris-

dictional; it may be waived by failing to raise it below. Collins

v. Youngblood, 497 U.S. 37, 41 (1990); Hopkins v. Reeves, 524

U.S. 88, 94 n.3 (1998) (“Because the State raised this [Teague]

argument for the first time in its petition for a writ of

certiorari, we choose to decide the case on its merits.”).

Here, respondent had every opportunity to raise Teague

(or retroactivity issues) below, since Virginia has adopted the

Teague analysis for state habeas proceedings. See Mueller v.

Murray, 478 S.E.2d 542, 544 (Va. 1996). But respondent never

asserted that Teague prevented adjudication of the Vienna

Convention claims. Nor did it make that argument under the

more general rubric of non-retroactivity. Having failed to

raise the issue in state court, respondent may not raise those

arguments for the first time here. Hopkins, 524 U.S. at 94 n.3;

Roberts v. Galen of Va., Inc., 525 U.S. 249, 253-254 (1999);

Kentucky v. Stincer, 482 U.S. 730, 747 n.22 (1987).

such relief in 80 years. See Ex parte Grossman, 267 U.S. 87 (1925); see

also Robert L. Stern et al., Supreme Court Practice 591 (8th ed. 2002).

7

In fact, Virginia’s procedural default rules would have

blocked respondent from belatedly raising the Teague

argument in the Supreme Court of Virginia. Respondent

never raised Teague in the circuit court, see Va. S. Ct. R. 5:25

(requiring objections to be raised in trial court), and never

raised it in opposition to the petition for appeal in the Virginia

Supreme Court, Va. S. Ct. R. 5:18(b) (“{NJo cross-error not

then assigned [in opposition to a petition for appeal] will be

noticed by this Court.”). Accordingly, and ironically, respon-

dent’s attempt to raise Teague here is barred by an

independent state ground.

C. The Violation Of Petitioner’s Vienna Convention

Rights Was Not “Harmless Error”

Finally, respondent argues that this Court should not re-

solve the concededly important Vienna Convention issues here

because the violation of petitioner’s Vienna Convention rights

was “harmless.” Br. in Opp. 17-23. But that argument was not

addressed by the state courts, which refused relief based on

procedural default alone. Moreover, the violation was any-

thing but harmless. As explained in the petition (at 22-25), it

resulted in the conviction of an innocent Honduran nationa’ for

a murder committed by another Honduran national—whs had

fled to Honduras the day after the victim’s death and who has

been videotaped bragging that he committed the offense.

Respondent’s contrary argument consists of examining

three pieces of evidence petitioner likely could have obtained

before trial absent the Vienna Convention violation and

suggesting that, taken individually, those pieces of evidence

“would not have altered the outcome.” Br. in Opp. 18, 21-23.

But petitioner at most is required to make “some showing that

the [Vienna Convention] violation had an effect on the trial.”

Breard v. Greene, 523 U.S. 371, 377 (1998) (emphasis addev);

see Torres v. State, No. PCD-2004-442, 2005 WL 2130195, at

*1 & n.6 (Okla. Crim. App. Sept. 6, 2005) (collecting cases that

find prejudice if the Consulate would have provided evidence

for use at trial). Here, obtaining the Honduran Government’s

assistance would have had a substantial impact on the trial and

its outcome.