Petition for Writ of Certiorari — United Mexican States v. Woods

Supreme Court

| PILED

971365 Fee is im

No. OFFICE OF TRE CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1997

UNITED MEXICAN STATES; MIGUEL ANGEL

GONZALEZ, Legal Advisor of Secretary of Foreign

Relations of Mexico; LUIS CABRERA, Consul General of

Mexico in the State of Arizona,

Petitioners,

vs. -

GRANT WOODS, Arizona Attorney General; TERRY L.

STEWART, Director of the Arizona Department of

Corrections; MEG SAVAGE, Warden, Arizona State Prison,

Florence, Arizona,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

———————&_q_@anaQGQGQGa==aaaaEaeg IaIEaE&E I_—**

LEWIS AND ROCA LLP

John P. Frank

José A. Cardenas*

Todd E. Hale

40 North Central Avenue

Phoenix, Arizona 85004-4429

(602) 262-5311

Attorneys for Petitioners

*Counsel of Record

QUESTION PRESENTED

Does the Eleventh Amendment bar a suit by a

sovereign nation seeking to enjoin state officials from

executing one of its nationals in violation of treaty

obligations of the United States owed to that national’s

sovereign?

PARTIES TO THE PROCEEDINGS BELOW

All of the parties in the court of appeals are identified

in the caption.

TABLE OF CONTENTS

Page

Se a IT WUE SBIR coccsossorsvansctsissecconsestvesecevenssoonecsdse i

PARTIES TO THE PROCEEDINGS BELOW. .................. ii

IN i PUR UD caltees sss ccecchnscvncsossovcssccsessonesoosies Vv

I I ee oa occahiui vain osctucedcnahsbopnsenesacssoseotess l

Fe TRIN sieniveecevsiessivuvesssccssceseiicies _ YS ae eee ]

CONSTITUTIONAL PROVISIONS AND

ca cinisncredeinsedaeexekessssbeocesecasstneese ]

PREMIERE GE BBUEE GAPMINES cnc cccenssvcenssocersnesecasvenzeonsnseess ]

A. ESE EEL RE Ieee ee 2

B. The Lower Courts’ Decisions...................4.. 3

REASONS FOR GRANTING THE PETITION................. 5

I. The Ninth Circuit’s Decision

Conflicts With And Is A Major

Departure From The Decisions Of

This Court And Other Circuits

Regarding The Scope Of The

Ex Parte Young Exception To

The Eleventh Amendment.....................:004 5

A. Mexico’s claims are not

barred because Mexico sought

only prospective relief. ...............00. 5

ill

Page

B. Mexico’s claims satisfied the

“ongoing violation”

II iii sakand si cck cn densseceacicin cic’ 8

Il. The Question Presented Raises

Important Issues Of State Officials’

Conduct In Disregarding The

Treaty Obligations Of The

1 RE ERR oe RE oe BE 1]

CORICT TR sw anicknn hibipitinh linia dnicetcretiinn 13

iV

TABLE OF AUTHORITIES

Federal Cases

Case Page

Coakley v. Welch,

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

cert. denied, 493 U.S. 976 (1989) v..ccccccccccsccssssssccescesees 8

District of Columbia Court of Appeals v. Feldman,

460 U.S. 462, 103 S. Ct. 1303,

Fe EINE Cac kaclcucdcchsanucconerssccsonasaiactidhaidae taast 3

Edelman v. Jordan,

415 US. 651, 94S. Ct. 1347,

FO is Ps TN wks cnckciss citsicctideciancdhcndanscenosccssbinces 6

Green v. Mansour,

474 US. 64, 106 S. Ct. 423,

ae in, Se Te I cicbhcks Sacec sks evaced eecccelcsoctencceevenaaes 8

Milliken v. Bradley,

433 U.S. 267, 97 S. Ct. 267,

Fe Bes EE OUTED | cicctocsincctovctbeccseoonpelinssencccesnterosanets 9

Papasan v. Allain,

478 U.S. 265, 106 S. Ct. 2932,

Fe SC PERI siiscahrvcosucuscscsscssnnesiaiedinntsntaeiniaadpesailigs 7

Quern v. Jordan,

440 US. 332, 99 S. Ct. 1139,

FP Lac DEO TTD iisicdicicsennshesscpvideninteaccebeuenbosmuntaan 6

Case ‘ Page

Russell v. Dunston,

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

cert. denied, 498 U.S. 813 (1990) ........cceececseeeeseereeees 7,8

United Mexican States v. Woods,

L2G F396 EZBR EG CAR, FOBT) ccccnctnsctecisnsceshcasiecinnns passim

Ex Parte Young,

209 U.S. 123, 28 S. Ct. 441,

S2 L. Bb. TES CEG) cscssssnscsccrerepetccricdchideccoetbinons a 549

Docketed Cases

Breard v. Pruett,

No. 96-25 (4th Cir. Jan. 22, 1998) .........cccsscscsssssecesssesees 12

Martinez-Villareal v. Lewis,

No. CIV-88-296-TUIC-RMB (D. Ariz. Oct. 20, 1994),

reversed on procedural bar grounds,

80 F.3d 1301 (9th Cir.),

cart. Ganked, (97D. Ce, SSB CTSIS) -cccessertsassorncscsdervecsinns 10

The Republic of Paraguay, et al. v. Allen, et al.

Nes, SEZ FID GE Cae. SI scinniiiclaistesbcsoredisnsaguinctivi -10, 11

Federal Statutes

United States Code:

USL. 6 EBRD) cine bane l

ys BER Tong BE | | ana Maes me aor 2

GE UES. BIE wcienssicicticerrnnaaesieaan iin 2

United States Constitution:

FINE Oe Se 1,7,8

Treaties and International Agreements

Consular Convention Between the United

States of America and Mexico, 8/12/42 ............ 1, 2, 3,4, 10

International Covenant on Civil and

Political Rights, 999 U.N.T.S. 171.000.000.000... 1, 2, 3, 4, 10

Vienna Convention on Consular Relations,

21 U.S.T. 77, 596 U.N.T.S. 261, 4/24/63 .............006. passim

Other Authorities

Tough Talk in Texas,

THE WASHINGTON POST, June 23, 1997 ........cccccccececceeeees 12

Vii

The Government of Mexico hereby petitions for a writ

of certiorari to review the decision and judgment of the

United States Court of Appeals for the Ninth Circuit in this

case.

OPINIONS BELOW

The opinion of the court of appeals (Appendix B) is

reported at 126 F.3d 1220 (9" Cir.). The order of the district

court, dated May 19, 1997, is attached as Appendix C.

JURISDICTION

The court of appeals entered its judgment on October

7, 1997. The court of appeals denied a timely petition for

rehearing on November 21, 1997 (Appendix A). The

jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL PROVISIONS AND

TREATIES INVOLVED

U.S. Constitution Amendment XI: The Judicial

power of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.

The relevant provisions of the Consular Convention

Between the United States of America and Mexico, the

Vienna Convention on Consular Relations, and the

International Convention on Civil and Political Rights are set

forth in Appendix D.

STATEMENT OF THE CASE

Petitioners are the United Mexican States, the legal

advisor to the Secretary of Foreign Relations for Mexico,

Miguel Angel Gonzalez, and the Consul General of Mexico

in the State of Arizona, Luis Cabrera (collectively “Mexico”).

Mexico invoked the jurisdiction of the United States District

Court for the District of Arizona under 28 U.S.C. § 1331

seeking injunctive and declaratory relief for respondents’

continuing violations of the Vienna Convention on Consular

Relations, 21 U.S.T. 77, 596 U.N.T.S. 261, 4/24/63 (“Vienna

Convention’) and the Consular Convention Between the

United States of America and Mexico, 8/12/42 (“Consular

Convention”) and threatened violations of the International

Covenant on Civil and Political Rights, 999 U.N.T.S. 171,

175 (“ICCPR”), Customary International Law, and 42 U.S.C.

§ 1983. These claims arise out of the arrest, conviction and

planned execution of a Mexican national, Ramén Martinez

Villareal.

A. Background

Mr. Martinez was arrested and charged with murder

in 1983. Although law enforcement officials knew that Mr.

Martinez was a Mexican national, they did not advise Mr.

Martinez of his right to communicate with Mexican consular

officials, nor did they advise the Mexican consulate of the

arrest. These failures violated the Vienna and Consular

Conventions.

Mr. Martinez was convicted of felony murder: His

court-appointed counsel presented no mitigating evidence,

much less the readily available evidence of Mr. Martinez’

mental retardation and mental illness. Eventually, a federal

district court (the Hon. Richard Bilby) held Mr. Martinez’

death sentence unconstitutional because of ineffective

assistance of counsel. That decision was reversed by the

Ninth Circuit, not on the merits but because the issue was

precluded because the same lawyer who performed

ineffectively did not raise his own lack of effective

representation as a ground for relief in the state courts.

2

On May 16, 1997, Mexico filed suit to enjoin the

defendants’ continuing violation of the Vienna and Consular

Conventions and threatened violations of the ICCPR and

customary international law. The ICCPR and customary

international law prohibit the imposition of the death penalty

if the condemned was not afforded effective assistance of

counsel. Customary international law further prohibits the

execution of a mentally retarded person like Mr. Martinez.

B. The Lower Courts’ Decisions

Defendants immediately filed a Rule 12(b)(6) motion

to dismiss Mexico’s lawsuit, thus admitting as true for

purposes of the motion Mexico’s factual allegations about the

Vienna and Consular Conventions violations, Mr. Martinez’

mental retardation and the absence of effective assistance of

counsel, and the resulting threatened violations of the ICCPR

and customary international law. On May 19, 1997, the

district court granted defendants’ motion.

It did so as to the Vienna and Consular Convention

claims on the ground that they were barred by the Eleventh

Amendment. The court held that the Ex Parte Young

exception for prospective relief did not apply because the

violations were “past” and not continuing violations. The

court dismissed the ICCPR and customary international law

claims on the ground that Mexico was essentially seeking

review of a state court decision, which the district court held

was barred by this Court’s decision in District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303,

75 L. Ed. 2d 206 (1983).

On appeal, the Ninth Circuit Court of Appeals ordered

expedited briefing (11 days), denied oral argument, denied

Mexico the opportunity to file a reply brief, and limited the

briefs to 15 pages. Six days later and without extending the

3

briefing schedule or page limitations, the court asked the

parties to address three additional justiciability questions.

Four months later, the court affirmed the district court and

held that a suit seeking an injunction against a future act —

Mr. Martinez’ execution — was barred because Mexico was

not seeking prospective relief. United Mexican States v.

Woods, 126 F.3d 1220, 1223 (9" Cir. 1997) (Appendix B).

The Ninth Circuit did not distinguish, as the district

court had, between Mexico’s purely prospective ICCPR

claims and the claims of ongoing violations of the Vienna and

Consular Conventions.' Instead, it dismissed all of Mexico’s

claims on Eleventh Amendment sovereign immunity

grounds. Relying on an analogy to a video camera, the court

rejected Mexico’s argument that its action comes within the

Ex Parte Young exception for prospective relief:

A criminal proceeding can be roughly

analogized to a series of videotaped scenes:

the arrest, the interrogation, the trial, the

sentencing, and the appeal. Each of these

scenes is examined post hoc in state

postconviction proceedings and federal

habeas. In no event, however, can the

conviction or sentence be considered as a

dynamic event, to be examined in a

prospective fashion. The facts relating to the

analysis of whether the proceedings met

constitutional requirements are fixed and must

be viewed through a retrospective lens.

126 F.2d at 1223.

' The court also did not consider the justiciability issue that it

ordered the parties to brief. 126 F.3d at 1224 n.3.

4

—

The court held that Mexico’s claims for declaratory

relief did not “convert the action into one for prospective

relief” because:

Mexico makes no allegations in its complaint

that Arizona officials intend to ignore or

violate the requirements and judgments of the

state or federal courts which have jurisdiction

in this case. In the absence of a valid claim of

a continuing violation of law, both an

injunction and a declaratory judgment are

rendered unavailable.

Id. The court concluded its opinion by stating that “the

Eleventh Amendment provides immunity to a state from suit

by a foreign government in federal court. The Young

exception is inapplicable because Mexico alleges no

continuing violations of federal or international law.” /d.

REASONS FOR GRANTING THE PETITION

I. The Ninth Circuit’s Decision Conflicts With And

Is A Major Departure From The Decisions Of This

Court And Other Circuits Regarding The Scope

Of The Ex Parte Young Exception To The Eleventh

Amendment.

A. Merxico’s claims are not barred because

Mexico sought only prospective relief.

Without justifying nor even acknowledging it, the

Ninth Circuit has crafted a brand new limitation on Ex Parte

Young that departs from this Court’s precedent. While the

Eleventh Amendment bars suits against states for damages,

this Court has recognized since Ex Parte Young, 209 U.S.

123, 128, 28 S. Ct. 441, 52 L. Ed. 714 (1908), that the

5

amendment permits suits against state officials whose

activities deny federal rights so long as the plaintiff seeks

only prospective relief. Edelman v. Jordan, 415 U.S. 651,

664-71, 94S. Ct. 1347, 39 L. Ed. 2d 662 (1974).

"Retrospective" relief is prohibited because of monetary

considerations that do not apply here.

As this Court stated in Quern v. Jordan, 440 U.S. 332,

337, 99 S. Ct. 1139, 39 L. Ed. 2d 358 (1979), "In Edelman

we reaffirmed the rule that had evolved in our earlier cases

that a suit in federal court by private parties seeking to

impose a liai®» y which must be paid from public funds in

the state treasuy is barred by the Eleventh Amendment."

The Court then explained:

The distinction between that relief permissible

under the doctrine of Ex parte Young and that

found barred in Edelman was the difference

between prospective relief on one hand and

retrospective relief on the other.

Id. (emphasis added). Mexico does not seek retrospective

relief nor money damages. It does seek prospective relief.

Hence, the Eleventh Amendment is no bar.

The Ninth Circuit avoids this result by replacing the

word “relief” with the words “review,” “examination,” or

their equivalent. Thus, the court states,

In no event . . . can the conviction or sentence

be considered as a dynamic event, to be

examined in a prospective fashion. The facts

relating to the analysis of whether the

proceedings met constitutional requirements

are fixed and must be viewed through a

retrospective lens.

6

126 F.3d at 1223 (emphasis added). Cf id. (“The

constitutional adequacy of that consideration [competency to

be executed] is now another scene for retrospective review,

based on a fixed set of facts.”) (emphasis added).

The Ninth Circuit’s focus on the “retrospective”

nature of the background facts is superficial and seriously

misconstrues this Court’s Ex Parte Young jurisprudence.

Many cases in which this Court and circuit courts have

applied Ex Parte Young involved a “fixed set of facts” that

were “viewed” “retrospectively.” The Eleventh Amendment

was not a bar, however, because the relief sought was

prospective. For example, the plaintiffs in Papasan v. Allain,

478 U.S. 265, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986), sued

to remedy the result of the improper sale of trust lands 130

years earlier. 478 U.S. at 274. This Court held that claims

seeking payment of income from the lost corpus were barred

by the Eleventh Amendment, but claims that the past

deprivations had created a disparity in school funding were

“precisely the type of continuing violation for which a

remedy may permissibly be fashioned under Young.” Id. at

282.

The Ninth Circuit’s decision similarly is flatly

contrary to the Second Circuit’s decision in Russell v.

Dunston, 896 F.2d 664 (2d Cir.), cert. denied, 498 U.S. 813

(1990). There the plaintiff sued for an injunction to force the

defendant state officials to reinstate plaintiff to medical leave

status. The underlying facts were “fixed.” The conduct

complained of was in no way a “dynamic event.” Judicial

review would of necessity be “retrospective.” Indeed, the

Second Circuit acknowledged that “the relief sought in the

instant case, contemplated ‘chang[ing] the result of an action

... already taken.’” Jd. at 668. Had the Second Circuit

applied the Ninth Circuit’s new retrospective “review”

7

standard, it would have affirmed the district court’s decision

that plaintiff's claim was barred by the Eleventh Amendment.

Instead, the court held:

We do not agree with the district court that the

existence of a past harm renders an otherwise

forward-looking injunction retroactive. If it

did, the rule allowing prospective relief would

be substantially undermined because the need

for prospective relief often arises out of a past

injury.

Id. The same result should have followed here.

B. Mexico’s claims satisfied the “ongoing

violation” requirement.

The Ninth Circuit’s assertion that the “continuing” or

“ongoing” violation requirement of the Eleventh Amendment

bars Mexico’s claims is equally flawed and for many of the

same reasons. As the Fourth Circuit explained in Coakley v.

Welch, 877 F.2d 304, 307 n.2 (4" Cir.), cert. denied, 493 U.S.

976 (1989):

[F]ew, if any, suits are barred for failure to

allege an “ongoing violation” under Papasan.

. .. Quite logically, the courts treat the issue of

whether a violation is “ongoing” as related to

the issues of whether prospective relief is

appropriate, or whether the requested relief

would operate instead as an illegitimate award

of retroactive damages.

Cf. Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 88 L.

Ed. 2d 371 (1985) ("Both prospective and retrospective relief

implicate Eleventh Amendment concerns, but the availability

8

eee

of prospective relief of the sort awarded in Ex parte Young

gives life to the Supremacy Clause. Remedies designed to

end a continuing violation of federal law are necessary to

vindicate the federal interest in assuring the supremacy of

that law.").

As stated, Mexico does not seek money damages. To

the extent that the “ongoing violation” requirement has any

vitality beyond the monetary damages context it does not bar

Mexico’s claims. The “past violations” acknowledged by the

district court are actionable ongoing violations for the same

reasons that the state defendants’ past conduct was actionable

in Papasan, i.e., there are present consequences that are the

basis for Mexico’ s claims.

Indeed, where the past conduct has present

consequences, the courts have found no Eleventh

Amendment bar even where the prospective relief requires

the expenditure of state funds. Thus, in Milliken v. Bradley,

433 U.S. 267, 97 S. Ct. 267, 53 L. Ed. 2d 745 (1977), this

Court held that the Eleventh Amendment did not bar a suit to

remedy the present effects of “past acts of de jure

segregation” even though the trial court’s order required the-

state officials to pay half of the funds needed to implement

the remedial plan:

[T]he prospective-compliance exception

reaffirmed by Edelman . . . permits federal

courts to enjoin state officials to conform their

conduct to requirements of federal law,

notwithstanding a direct and substantial

impact on the state treasury.

433 US. at 289.

Moreover, even the district court made a distinction

between Mexico’s ICCPR and customary international law

claims and its Vienna and Consular Convention claims. The

court reasoned that the Vienna and Consular Convention

violations were past violations and hence not “continuing

violations,” and the Ninth Circuit agreed (albeit

erroneously).” The district court, however, did not take the

same position as to the ICCPR and other claims based upon

the all but conceded ineffective assistance of Mr. Martinez’

counsel and Mr. Martinez’ equally undisputed mental

retardation.

And for good reason -- a different federal district

court judge has already held that but for the ineffective

assistance of Mr. Martinez’ counsel, he almost certainly

would not now be under a sentence of death. Martinez-

Villareal v. Lewis, No. CIV-88-296-TUC-RMB at 20-30 (D.

Ariz. Oct. 20, 1994), reversed on procedural bar grounds, 80

F.3d 1301, 1305 (9" Cir.), cert. denied, 117 S. Ct. 588

(1996). Because the ICCPR and customary international law

prohibit the execution of the mentally retarded and those who

have not had the assistance of competent counsel, Mexico

does seek prospective relief to prevent threatened violations

of those provisions. The district court did not pretend

otherwise. The Ninth Circuit, however, did -- it suggested

that Mexico makes no claim that Arizona officials intend to

* The Fourth Circuit Court of Appeals reached the same conclusion

in an opinion issued on January 22 of this year. The Republic of

Paraguay, et al. v. Allen, et al., No. 96-2770 (4* Cir. 1998).

Interestingly, the Fourth Circuit did not in any way rely on the

_ Ninth Circuit’s analysis. Instead, the court made only one

reference to the Ninth Circuit’s decision, literally at the very end of

its opinion and then only to note that the Ninth Circuit had

similarly held that the Eleventh Amendment barred a “comparable

action.” The Paraguay case did not involve the ICCPR and other

claims made here.

10

ignore their legal obligations.’ But that is precisely Mexico’s

position.

In summary, the Ninth Circuit’s position that Mexico

does not seek prospective relief is simply untenable. Mexico

seeks to enjoin an execution that would violate multiple

provisions of international and treaty law. On the face of it,

little is as dramatically prospective as an ordained death. To

execute a person where treaty rights have been ignored is the

most palpable conceivable "continuing violation."

Il. The Question Presented Raises Important Issues

Of State Officials’ Conduct In Disregarding The

Treaty Obligations Of The United States.

State officials’ disregard for the treaty obligations of

the United States can have far reaching consequences. Even

as it rejected Paraguay’s claims for violation of the Vienna

Convention, the Fourth Circuit expressed its

““disenchantment’” with state officials’ violation of

Paraguay’s treaty rights and its concern with the “disturbing

implications in that conduct for larger interests of the United

States and its citizens.” Paraguay, slip op. at 11. In his

special concurrence to a companion decision to Paraguay,

Senior Judge Butzner eloquently explained why:

The language [of the Vienna Convention] is

mandatory and unequivocal, evidencing the

signatories’ recognition of the importance of

consular access for persons detained by a

foreign government.

* “Mexico makes no allegations in its complaint that Arizona

Officials intend to ignore or violate the requirements and judgments

of the state or federal courts which have jurisdiction in this case.”

126 F.3d at 1223.

11

The protections afforded by the Vienna

Convention go far beyond Breard’s case.

United States citizens are scattered about the

world. ... Their freedom and safety are

seriously endangered if state officials fail to

honor the Vienna Convention and other

nations follow their example. Public officials

should bear in mind that “international law is

founded upon mutuality and reciprocity. . . .”

The importance of the Vienna Convention

cannot be overstated. It should be honored by

all nations that have signed the treaty and all

states of this nation.

Breard v. Pruett, No. 96-25 (4" Cir. Jan. 22, 1998), Slip Op.

at 11-12.

Perhaps the most cavalier disregard of United States’

treaty obligations and the Supremacy Clause by state officials

occurred last June. In a death penalty case involving another

Mexican citizen, Texas state officials responded to inquiries

by the United States Department of State about possible

Vienna Convention violations by stating that “the State of

Texas is not a signatory to the Vienna Convention on

Consular Relations ... .” Tough Talk in Texas, THE

WASHINGTON Post, June 23, 1997, at Al7.

Arizona's continuing treaty violations and the short

shrift given Mexico’s claims here are equally disturbing.

Given the stakes involved, the serious questions of

international law at issue, and the involvement of a sovereign

nation, Mexico deserved at least the opportunity to brief its

12

claims fully and to be heard on them. If the door to the

courthouse is to be closed to sovereign nations complaining

of serious treaty violations, such a pronouncement should and

indeed must come from this country’s highest court.

CONCLUSION

The petition for a writ of certiorari should be granted.

RESPECTFULLY SUBMITTED.

February, 1998.

LEWIS AND ROCA LLP

John P. Frank

José A. Cardenas*

Todd E. Hale

40 North Central Avenue

Phoenix, Arizona 85004-4429

(602) 262-5311

Attorneys for Petitioner

*Counsel of Record

13

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS |

FOR THE NINTH CIRCUIT |

UNITED MEXICAN )

STATES; MIGUEL ANGEL ) No. 97-15878

GONZALEZ, Legal Advisor _)

of Secretary of Foreign D.C. No. CV-97-

Relations of Mexico; LUIS 01075

CABRERA, Counsel General

of Mexico in the State of

Arizona, ORDER

VS.

GRANT WOODS, Attorney

General; TERRY L.

STEWART, Director of the

Arizona Department of ©

Corrections; MEG SAVAGE, )

Warden, Arizona State Prison, )

Florence, Arizona, )

)

Defendants-Appellees. )

)

)

)

)

)

:

Plaintiffs-Appellants, )

)

)

)

)

)

)

)

Before: | D.W. NELSON, LEAVY, and T.G. NELSON,

Circuit Judges

The panel has voted to deny appellants’ petition for

rehearing. Judge T.G. Nelson votes to reject the suggestion for

rehearing en banc and Judge D.W. Nelson and Judge Leavy so

recommend.

The full court has been advised of the suggestion for

rehearing en banc and no judge of the court has requested a

vote on whether to rehear the matter en banc. Fed. R. App. P.

35. 2 3

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.

November 21, 1997

A-2

APPENDIX B

UNITED MEXICAN STATES; MIGUEL ANGEL

GONZALEZ, Legal Advisor of the Secretary of

Foreign Relations of Mexico; LUIS CABRERA, Counsel

General of Mexico in the

State of Arizona, Plaintiffs-Appellants,

v.

GRANT WOODS, Attorney General; TERRY L.

STEWART, Director of the Arizona

Department of Corrections; MEG SAVAGE, Warden,

Arizona State Prison, Florence,

Arizona, Defendants-Appellees.

No. 97-15878.

United States Court of Appeals,

Ninth Circuit.

Submitted June 3, 1997.*

* The panel unanimously finds this case suitable for

decision without oral argument. Fed. R. App. P. 34(a) and

Ninth Circuit Rule 34-4. ne

OPINION. Decided October 7, 1997.

Foreign country and two of its officials brought action

against state attorney general and state corrections officers,

alleging that execution of citizen of foreign country violated

treaties and customary international law. The United States

District Court for the District of Arizona, Stephen M.

McNamee, J., dismissed action, and plaintiffs appealed. The

Court of Appeals, T.G. Nelson, Circuit Judge, held that: (1)

defendants were immune from suit under Eleventh

Amendment even though action was brought against state

officials rather than state itself, and (2) action did not seek

B-1

prospective relief within meaning of Ex Parte Young exception

to immunity.

Affirmed; request for injunction denied.

John P. Frank, Lewis and Roca, Phoenix, Arizona, for

plaintiffs-appellants.

Jon G. Anderson, Assistant Attorney General, Phoenix,

Arizona, for defendants-appellees.

Appeal from the United States District Court for the District of

Arizona; Stephen M. McNamee, District Judge, Presiding.

D.C. No. CV-97-01075.

Before: D.W. NELSON, LEAVY, and T.G. NELSON, Circuit

Judges.

T.G. NELSON, Circuit Judge:

The United Mexican States and two of its officials

appeal the district court's dismissal of their action against

Arizona's Attorney General and two officers of the Arizona

Department of Corrections. The district court held that it

lacked jurisdiction under the Eleventh Amendment to the

Constitution of the United States. We agree and affirm the

dismissal.

BACKGROUND

Ramon Martinez-Villareal, a citizen of Mexico, was

convicted of the capital murders of Jim McGrew and Fernando

Estrada. His convictions and death sentences were upheld in

1985. State v. Martinez-Villareal, 145 Ariz. 441, 702 P.2d 670

(1985). This court denied relief on the appeal of his federal

habeas petition in 1996. Martinez-Villareal v. Lewis, 80 F.3d

B-2

1301 (9th Cir.), cert. denied, --- U.S. ----, 117 S. Ct. 588, 136

L. Ed. 2d 517 (1996).

Martinez-Villareal's execution was scheduled for April

1997, and later postponed to May 22. On May 16, the United

Mexican States, the Legal Adviser of the Secretary of Foreign

Relations and the Consul General of the State of Mexico in the

State of Arizona (collectively "Mexico") filed suit in district

court. It contended that the execution of Martinez-Villareal

would violate three treaties and customary international law.

The Consul General also sought relief under 28 U.S.C. § 1983.

Mexico sought a temporary restraining order and a preliminary

injunction. The district court dismissed the complaint and the

requests for a temporary restraining order and preliminary

injunction. Mexico has appealed to this court and seeks an

injunction pending appeal.

DISCUSSION

The Eleventh Amendment to the Constitution of the

United States provides:

The Judicial power of the United States shall

not be construed to extend to any suit in law or

equity, commenced or prosecuted against one

of the United States by Citizens of another

State, or by Citizens or Subjects of any Foreign

State.

Although the amendment does not by its terms refer to

the immunity of states from suits by foreign nations, it is now

well established that the amendment does immunize the states

from such suits.

Monaco v. Mississippi, 292 U.S. 313, 54 S. Ct. 745, 78

L. Ed. 1282 (1934), involved a request by the Principality of

Monaco for leave to sue the State of Mississippi in the

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Supreme Court upon bonds issued by Mississippi. The court

noted the lack of reference in the amendment to suits by

foreign nations. /d. at 321, 54 S. Ct. at 747. However, it held

that the immunity applied to such cases, saying

The foreign State lies outside the structure of

the Union. The waiver or consent, on the part

of a State, which inheres in the acceptance of

the constitutional plan, runs to the other States

who have likewise accepted that plan, and to

the United States as the sovereign which the

Constitution creates. We perceive no ground

upon which it can be said that any waiver or

consent by a State of the Union has run in favor

of a foreign State. As to suits brought by a

foreign State, we think that the States of the

Union retain the same immunity that they

enjoy with respect to suits by individuals

whether citizens of the United States or citizens

or subjects of a foreign State. The foreign State

enjoys a similar sovereign immunity and

without her consent may not be sued by a State

of the Union.

Id. at 330, 54 S. Ct. at 751. See also Blatchford v. Native

Village of Noatak, 501 U.S. 775, 782, 111 S. Ct. 2578, 2582,

115 L. Ed. 2d 686 (1991) ("What makes the States’ surrender

of immunity from suit by sister States plausible is the

mutuality of that concession. There is no such mutuality with

either foreign sovereigns or Indian tribes.") Thus, it is clear

that Mexico may not sue the State of Arizona in federal court

absent its consent, which it has not given.

Mexico argues that its suit is against state officials, not

the State itself, and therefore not within the State's Eleventh

Amendment immunity. This argument is untenable in the face

of Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,

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104 S. Ct. 900, 79 L. Ed. 2d 67 (1984), which stated that "[t]he

general rule is that relief sought nominally against an officer is

in fact against the sovereign if the decree would operate

against the latter." /d. at 101, 104 S. Ct. at 908 (quoting

Hawaii v. Gordon, 373 U.S. 57, 58, 83 S. Ct. 1052, 1053, 10

L. Ed. 2d 191 (1963)).

In this case, it is the State of Arizona which has

prosecuted Martinez-Villareal and sentenced him to death. It

is the State which seeks to carry out the sentence. The relief

Mexico seeks would operate against the sentence imposed by

the State and not against the officials designated by State law

to carry out the sentence. See id. at 101-02, 104 S. Ct. at

908-09 ("and as when the State itself is named as the

defendant, a suit against state officials that is in fact a suit

against a State is barred regardless of whether it seeks damages

or injunctive relief").

There is an exception to the above rule under Ex Parte

Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908).

Under that case, if the suit involves an injunction seeking a

prospective remedy for a continuing violation of federal law, a

federal court may enjoin state officials from continuing such

activity. Idaho v. Coeur d'Alene Tribe of Idaho, --- U.S. ----,

----, 117 S. Ct. 2028, 2034, 138 L. Ed. 2d 438 (1997).

The specific violations of treaty rights claimed are the

failure of Arizona officials to notify Martinez-Villareal of his

rights under the Vienna Convention on Consular Relations, 21

U.S.T. 77; their failure to notify Mexican Consular Officials

directly of his arrest, as required by Articles I and VI of the

Bilateral Consular Convention, 57 Stat. 800; their failure to

provide Mexico a meaningful opportunity to assist

Martinez-Villareal as required by the two treaties; their failure

to ensure that Martinez-Villareal had competent counsel at all

stages of the proceedings; and their intent to carry out the

death sentence in spite of his mental retardation, apparently

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contended to be contrary to the International Covenant on Civil

and Political Rights (999 U.N.T.S. 171), as well as customary

international law.

Mexico argues that its treaty-based challenges to the

validity of Martinez-Villareal's conviction and sentence can

give rise to prospective relief under Ex Parte Young. We

reject this argument. A criminal proceeding can be roughly

analogized to a series of videotaped scenes: the arrest, the

interrogation, the trial, the sentencing, and the appeal. Each of

these scenes is examined post hoc in state postconviction

proceedings and federal habeas. In no event, however, can the

conviction or sentence be considered as a dynamic event, to be

examined in a prospective fashion. The facts relating to the

analysis of whether the proceedings met constitutional

requirements are fixed and must be viewed through a

retrospective lens.

The same is true of Mexico's argument that

Martinez-Villareal is retarded. The Constitution of the United

States prohibits the execution of those who cannot understand

that they are to be executed and why. Ford v. Wainwright, 477

U.S. 399, 106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986). See also

Martinez-Villareal v. Stewart, 118 F.3d 625 (9th Cir. 1997).

The Arizona Superior Court held a four-day evidentiary

hearing before concluding that Méartinez-Villareal was

competent to be executed. The Arizona Supreme Court

considered a special action petition and denied relief. The

question of Martinez-Villareal's competence to be executed

has been considered as required by state law. The

constitutional adequacy of that consideration is now another

scene for retrospective review, based on a fixed set of facts.

Mexico has not challenged the validity of the Arizona

competency determination scheme, as embodied in A.R.S. §

13-4022. Therefore, no prospective relief is involved in the

determination of Martinez-Villareal's competence to be

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executed. "Young has been focused on cases in which a

violation of federal law by a state official is ongoing as

opposed to cases in which federal law has been violated at one

time or over a period of time in the past....". Papasan v. Allain,

478 U.S. 265, 277-78, 106 S. Ct. 2932, 2939-40, 92 L. Ed. 2d

209 (1986).

Mexico's consistent request for a "declaration" that

Arizona's past conduct violated the treaties does not convert

the action into one for prospective relief. Mexico is faced with

the fact that it has received notice and currently has access to

Martinez-Villareal. Mexico is not precluded from ensuring

that Martinez-Villareal has effective counsel. Mexico makes

no allegations in its complaint that Arizona officials intend to

ignore or violate the requirements and judgments of the state

or federal courts which have jurisdiction in this case. In the

absence of a valid claim of a continuing violation of law, both

an injunction and a declaratory judgment are rendered

unavailable. See Green v. Mansour, 474 U.S. 64, 73, 106 S.

Ct. 423, 428, 88 L. Ed. 2d 371 (1985) ("We think that these

cases demonstrate the impropriety of the issuance of a

declaratory judgment in this case. There is no claimed

continuing violation of federal law, and therefore no occasion

to issue an injunction.").'

In conclusion, the Eleventh Amendment provides

immunity to a state from suit by a foreign government in

federal court. The Young exception is inapplicable because

Mexico alleges no continuing violations of federal or

' There is some question about the extent to which the specific

language of the Covenant binds the United States, given the

“reservations, understandings and declarations" involved in its

ratification by the Senate in 1992. See "The International

Covenant on Civil and Political Rights and the Supremacy

Clause," 42 DE PAUL L.R. 1287 (1993).

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international law.2 Therefore, Arizona and its officials are

immune from Mexico's suit. The district court was correct in

dismissing on that basis.’

? Mexico also claims that the execution of Martinez- Villareal

would violate customary international law because he is

retarded. While the United States may not be bound to follow

customary international law, see Siderman de Blake v.

Republic of Argentina, 965 F.2d 699, 715 (9th Cir.1992), cert.

denied, 507 U.S. 1017, 113 S. Ct. 1812, 123 L. Ed. 2d 444

(1993), the claim of mental retardation is not qualitatively

different from the incompetence to be executed analysis

already undertaken. Furthermore, we have examined the

treaties and see no ongoing obligations which could afford

prospective relief under Young. Cf Murphy v. Netherland, 116

F.3d 97, 100 (4th Cir. 1997), cert. denied, stay denied, 1997

WL 562172 (U.S. 1997) (a state does not violate a

constitutional right merely by violating the provisions of the

Vienna Convention).

> The parties briefed the issue of the justiciability of this

dispute, at our request. There is a question whether this kind

of a dispute concerning the duties of the parties to a treaty is

cognizable in federal court:

A treaty is primarily a compact between

independent Nations. It depends for the

enforcement of its provisions on the interest

and the honor of the governments which are

parties to it. If these fail, its infraction becomes

the subject of international negotiations and

reclamations, so far as the injured party chooses

to seek redress, which may in the end be

enforced by actual war. It is obvious that with

all this, the judicial courts have nothing to do

and can give no redress.

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in enacsaniaiteaiaieniamnuenaii

AFFIRMED. The request for injunction pending appeal is

DENIED as moot.

Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 253, 28

L. Ed. 798 (1884).

Since we agree with the district court that it had no

jurisdiction, we need not consider the justiciability question,

and express no opinion on that issue.

B-9

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED MEXICAN )

STATES, et al., ) No. CIV 97-1075.

) PHX-SMM

Plaintiffs, )

)

vs. )

) ORDER

GRANT WOODS, Attorney)

Géneral of the State of )

Arizona, et al., )

)

Defendants. )

)

Plaintiffs United Mexican States, Miguel Angel

Gonzalez Felix (Legal Advisor of the Secretary of Foreign

Relations of Mexico), and Luis Cabrera (Consul General of

Mexico in the State of Arizona) have filed an Application for

Temporary Restraining Order and Preliminary Injunction, a

Memorandum of Points and Authorities in Support, and a

Complaint. Defendants have filed a Motion to Dismiss

Complaint and Application for TRO\Preliminary Injunction

pursuant to Rule 12(b)(1) for lack of subject matter

jurisdiction.' Plaintiffs have filed a response to the motion to

Defendants’ Motion to Dismiss cites Rule 12(b)(6),

but alleges lack of subject matter jurisdiction. The Court will

treat the motion as one based on Rule 12(b)(1).

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dismiss and a reply in support of their application for TRO.

Defendants also filed a reply.

The Complaint names as defendants the Attorney

General of the State of Arizona, the Director of Corrections

for the State of Arizona, and the Warden of the Arizona State

Prison in Florence. The Complaint alleges that defendants

have violated their duties to plaintiffs under the Vienna

Convention on Consular Relations ("Vienna Convention"),

the Consular Convention between the United Mexican States

and the United States of America ("Bilateral Consular

Convention"), the International Covenant on Civil and

Political Rights ("ICCPR"), and customary international law.

In addition, plaintiff Cabrera seeks equitable relief under 42

U.S.C. § 1983. Specifically, the Complaint alleges:

In violation of treaty obligations and

customary international law, binding on defendants as

the law of the United States and owed directly to the

United Mexican States and its consular officers, the

defendants (1) failed to inform Mexican citizen,

Ramon Martinez Villareal, during and after his arrest

of his right to seek the assistance of Mexican consular

officers, as required by article 36(1)(b) of the Vienna

Convention, (2) failed to notify Mexican consular

officers directly that a Mexican citizen had been

arrested, as required by articles I and VI of the

Bilateral Consular Convention, (3) failed to provide

plaintiffs a meaningful opportunity to provide

consular assistance to Mr. Martinez Villareal during

the proceedings against him, as required by those two

treaties, (4) failed to ensure that Mr. Martinez

Villareal was represented by competent counsel at all

stages of the proceedings; and (6) [sic] imposed and

intend to carry out a sentence of death despite the fact

that Mr. Martinez Villareal is mentally retarded.

Complaint at 2.

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a ee

The Application for TRO\Preliminary Injunction

requests the Court to issue an order restraining defendants

from executing Ramon Martinez Villareal on May 21, 1997.7

. In 1983 Mr. Martinez Villareal was convicted of

murder and sentenced to death. On March 25, 1993, in

Martinez-Villareal v. Lewis, CIV 86-296-TUC-RMB, Mr.

Martinez Villareal filed an Amended Petition for Writ of

Habeas Corpus pursuant to 28 U.S.C. § 2254. This Court,

Judge Richard M. Bilby presiding, held that Mr. Martinez

Villareal was denied effective assistance of counsel at

sentencing. All other claims were denied with prejudice,

except for the competency-to-be-executed claim which was

premature and denied without prejudice. Order dated

10/21/94. On appeal, the Ninth Circuit Court of Appeals held

that the ineffective-assistance-of-counsel claim was

procedurally barred and it reversed and remanded with

instructions to enter judgment denying the petition. The

Ninth Circuit also stated that this Court properly found the

competency claim to be premature. Martinez-Villareal v.

Lewis, 80 F.2d 1301 (9th Cir.), cert. denied, U.S. ,117S.

Ct. 588 (1996).

Subsequently, the Arizona Supreme Court issued a

warrant of execution set for April 16, 1997, later quashed that

warrant, and re-issued a warrant of execution set for May 21,

1997. Evidentiary hearings on the issue of Mr. Martinez

Villareal's competency to be executed were held in state

superior court on April 7 and May 6-8, 1997. On May 9,

1997, the superior court held that Mr. Martinez Villareal was

competent to be executed. Arizona v. Martinez- Villareal, No.

CR-97022291 (Pinal County Superior Court). On May 16,

1997, the Arizona Supreme Court denied Mr. Martinez

Villareal's request for special action relief and his request for

a stay of execution.

On May 13, 1997, Mr. Martinez Villareal had filed in

this Court a Motion for Expert Services and Appointment of

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In seeking a preliminary injunction, a plaintiff must show

either (1) a likelihood of success on the merits and the

possibility of irreparable injury, or (2) the existence of serious

questions going to the merits and the balance of hardships

tipping in plaintiff's favor. Gilder v. PGA Tour, Inc., 936

F.2d 417, 422 (9th Cir. 1991) ; Benda v. Grand Lodge of the

Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d

308, 314-15 (9" Cir. 1978).

However, defendants argue that the Court lacks subject

matter jurisdiction over this matter. The Court agrees.

The Eleventh Amendment to the United States

Constitution provides:

The Judicial power of the United States

shall not be construed to extend to any suit in law

or equity, commenced or prosecuted against one

of the United States by Citizens of another State,

or by Citizens or Subjects of any Foreign State.

Counsel stating that he intended to file a "supplemented

petition” raising a competency-to-be-executed claim. The

Court, Judge Bilby presiding, appointed counsel. The State

argued that the Motion for Expert Services related to a second

or successive petition and that the Court lacked jurisdiction in

light of 28 U.S.C. [§] 2244(b\(3) which requires a petitioner

to first obtain permission from the Circuit Court before filing

a second or successive petition. This Court agreed that it

lacked jurisdiction. Order dated 5/16/97, Martinez-Villareal

v. Lewis, CIV 86-296-TUC-RMB.

The United Mexican States, et al., filed the present

Complaint and Application for TRO\Preliminary Injunction

on May 16, 1997. Although it is indirectly related to the

habeas proceedings, this TRO matter remains assigned to

Judge Stephen M. McNamee because Judge Bilby is

presiding over a trial in Texas.

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————————————E

The Eleventh Amendment divests federal courts of

jurisdiction over suits by a foreign country, and citizens of a

foreign country, against a state. Seminole Tribe of Florida v.

Florida, U.S. 116S. Ct. 1114, 1129, 1136-37 (1996);

incipality v. Mi i, 292 U.S. 313, 54S.

Ct. 745 (1934). It also bars suits against state officials that

are in fact suits against a state. Pennhurst State School &

Hospital v. Halderman, 465 U.S. 89, 101-2, 104 S. Ct. 900,

908-9 (1984). There is one exception to the latter bar: a

party at risk of or suffering from a violation of federally

protected rights may seek to enjoin the offending state

officers. Ex parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908).

Before an injunction may issue on that basis, the plaintiff

must show (1) that he seeks a remedy for a continuing

violation of federal law and (2) that the relief is prospective.

Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423, 425-26

(1986).

The United Mexican States and its officials have filed a

suit against officials of the State of Arizona requesting the

following relief:

1. Declare that the defendants violated

the provisions of the Vienna Convention by failing to

notify Mr. Martinez Villareal of his right to seek the

assistance of Mexican consular officials.

2. Declare that the defendants violated

the provisions of the Bilateral Consular Convention

by virtue of their failing immediately to notify the

consular officers of the United Mexican States that

Mr. Martinez Villareal, a citizen of Mexico, had been

arrested.

3. Declare that the defendants violated,

and continue to violate, the provisions of both such

treaties by having failed to afford plaintiffs a

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meaningful opportunity to provide Mr. Martinez

Villareal consular assistance.

4. Declare that defendants violated, and

continue to violate, international common law by

virtue of sentencing Mr. Martinez Villareal to death

despite his mental retardation and limited mental

capacity and by seeking to carry out that death

sentence.

5. Declare that defendants violated, and

continue to violate, the International Covenant on

Civil and Political Rights and international common

law by virtue of their continuing willful refusal to

ensure that Mr. Martinez Villareal was afforded

competent counsel at all stages of the proceedings.

6. Declare the conviction and or sentence

of Mr. Martinez Villareal void.

7. Declare that any future actions taken

by defendants based on the illegal conviction and

sentence, including the execution of Mr. Martinez

Villareal, would constitute continuing violations of

the Vienna Convention, the Bilateral Consular

Convention, the [ICCPR] and customary. international

law, and enjoin the defendants from committing any

such future violations.

8. Order prospective injunctive relief

requiring vacation of Mr. Martinez Villareal's

conviction and sentence and mandating that the

defendants, in any further proceedings involving Mr.

Martinez Villareal, afford plaintiffs all rights due

them under the Vienna Convention, the Bilateral

Consular Convention, the [ICCPR] and customary

international law.

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9. Issue a temporary restraining order

restraining and enjoining defendants from executing

Ramon Martinez Villareal until such time as the

merits of this action can be examined.

Complaint at 18-19.

Although plaintiffs have named Arizona officials as

a defendants, in reality this is a suit against the State of

Arizona. The State of Arizona prosecuted Mr. Martinez

Villareal and the State of Arizona is attempting to carry out

the death sentence. The Eleventh Amendment bars this suit

entirely, unless plaintiffs show that there is jurisdiction for

granting injunctive relief under the

exception. Plaintiffs must show that they seek a remedy for a

continuing violation of federal law. They have failed to make

that showing. Plaintiffs have been in contact with Mr.

Martinez Villareal since at least 1991. See Appendix A to

Motion to Dismiss. The alleged failure of defendants in 1983

to notify him of his right to consular assistance and to notify

consular officials of his arrest are past (alleged) violations of

the Vienna Convention and Bilateral Consular Convention,

not continuing violations. See ¢.g., Republic of Paraguay v.

Allen, 949 F. Supp. 1269 (E.D. Va. 1996); Faulder v.

Johnson, 81 F.3d 515, 520 (Sth Cir. 1996).

Plaintiffs also allege that Mr. Martinez Villareal was

denied effective assistance of counsel and sentenced to death

“despite his mental retardation and limited mental Capacity,"

in violation of the ICCPR and international common law.

: Petitioners allege that the ICCPR was adopted by the

United States on September 8, 1992. This raises a question

of whether the ICCPR can be applied retroactively in that

defendants’ alleged failure to provide competent counsel

C-7

Plaintiffs ask the Court to declare "the illegal conviction and

sentence” void. Complaint at 19. Claims of ineffective

assistance of Mr. Martinez Villareal's counsel and Mr.

Martinez Villareal’s competency to be executed have been

and continue to be the subject of extensive litigation in state

court and federal habeas corpus proceedings. (See footnote 2,

supra.) Except for habeas corpus review, a federal district

court "has no authority to review final judgments of a state

court in judicial proceedings." District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482, 103 S. Ct. 1303,

1315 (1983). If the claims presented to the district court are

"inextricably intertwined with the state court's denial in a

judicial proceeding of a particular plaintiff's [claims],” then

the district court "is in essence being called upon to review

the state-court decision” and "[t}his the [d]istrict [c]ourt may

not do.” Id. at 483-84 n.16, 103 S. Ct. at 1315-16 n.16. See

also Leonard v. Suthard, 927 F.2d 168, 169-70 (4th Cir.

1991). Review of state court judgments may only be had in

the United States Supreme Court. Feldman, 460 U.S. at 482,

103 S. Ct. at 1315.4 The claims presented by plaintiffs here

are "inextricably intertwined" with the Arizona state courts'

judgments in Mr. Martinez Villareal's direct appeal of his

conviction and sentence and in his postconviction relief

proceedings. This Court in these proceedings has no

occurred in 1983. However, the Court need not reach this

question in light of its ruling on subject matter jurisdiction.

"Moreover, the fact that [the United States Supreme

Court] may not have jurisdiction to review a final state-court

judgment because of a petitioner's failure to raise his

constitutional claims in state court does not mean that a

United States District Court should have jurisdiction over the

claims. By failing to raise his claims in state court a plaintiff

may forfeit his right to obtain review of the state-court

decision in any federal court." Feldman, 460 US. at 483-84

n.16, 103 S. Ct. at 1315-16 n.16.

C-8

authority to declare his conviction and sentence void.° See

¢.g., Republic of Paraguay v. Allen, 949 F. Supp. at 1273.

Conclusion

This Court lacks subject matter jurisdiction in this case.

The Court realizes that plaintiffs will disagree with the

Court's decision and interpretation of the law. However, the

Court's dismissal of the complaint and application for TRO

for lack of jurisdiction (as opposed to denying the TRO only)

will allow plaintiffs to appeal to the Ninth Circuit and

coordinate the appeal in this case with any motions filed by

Mr. Martinez Villareal there.

Although defendants argue that plaintiffs have

unnecessarily delayed filing this action, the Court can

appreciate plaintiffs' reluctance to file the action except as a

last resort. However, the Court also notes that the ICCPR

establishes a Human Rights Committee to oversee

compliance and investigate reports of noncompliance made

by one party against another. See Report, Senate Committee

on Foreign Relations, 102D Cong., 2D Sess., International

Convention on Civil and Political Rights, Exec. Rpt. 102-23

at pp. 2-3, 6, 20 (1992). It appears that that may have been

the proper forum for plaintiffs' claims.

>

IT IS ORDERED granting defendants’ Motion to

Dismiss Complaint and Application for Temporary

Restraining Order and Preliminary Injunction.

: In addition, as noted in footnote 2, Mr. Martinez

Villareal is currently pursuing relief in habeas corpus

proceedings in federal court. To grant the relief requested in

plaintiffs' complaint and application for TRO would in effect

allow Mr. Martinez Villareal to avoid the restrictions on

second and successive petitions in 28 U.S.C. § 2244(b).

C-9

IT IS FURTHER ORDERED that the Clerk of the

Court mail and fax a copy of this Order to all counsel of

record, and fax a copy to the Ninth Circuit Court of Appeals

and the United States Supreme Court.

DATED this 19" day of May, 1997.

me

Stephen M. McNamee

United States District Judge

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4

Ss

és

Ms

es

i

$i

oe

APPENDIX D

CONSULAR CONVENTION BETWEEN THE

UNITED STATES OF AMERICA AND THE

UNITED MEXICAN STATES

August 12, 1942

ARTICLE I

2.—Consular officers of each High Contracting Party

shall, after entering upon their duties, enjoy reciprocally in the

territories of the other High Contracting Party all the rights,

privileges, exemptions and immunities which are enjoyed by

consular officers of the same grade of the most favored nation,

there being understood by consular officers Consuls General as

well as Consuls and Vice Consuls who are not honorary. As

official agents, such officers shall be entitled to the high

consideration of all officials, national or local, with whom they

have official intercourse in the State which receives them.

ARTICLE VI.

1.—Consular officers of either High Contracting Party

may, within their respective consular districts, address the

authorities, National, State, Provincial or Municipal, for the

purpose of protecting the nationals of the State by which they

were appointed in the enjoyment of rights accruing by treaty or

otherwise. Complaint may be made for the infraction of those

rights. Failure upon the part of the proper authorities to grant

redress or to accord protection may justify interposition through

the diplomatic channel, and in the absence of a diplomatic

representative, a consul general or the consular officer stationed

D-1

at the capital may apply directly to the Government of the

country.

2.—Consular officers shall, within their respective

consular districts, have the right:

(a) to interview and communicate with the

nationals of the State which appointed them;

(b) to inquire into any incidents which have

occurred affecting the interests of the nationals of the State

which appointed them;

(c) upon notification to the appropriate authority, to

visit any nationals of the State which appointed them who are

imprisoned or detained by authorities of the State; and

(d) to assist the nationals of the State which

appointed them in proceedings before or relations with

authorities of the State.

3.—Nationals of either High Contracting Party shall

have the right at all times to communicate with the consular

officers of their country.

D-2

VIENNA CONVENTION

ON CONSULAR RELATIONS

Article 5

Consular functions

Consular functions consist in:

| (a) protecting in the receiving state the interests of

the sending state and of its nationals, both individuals and

bodies corporate, within the limits permitted by international

law;

(b) furthering the development of commercial,

economic, cultural and scientific relations between the sending

state and the receiving state and otherwise promoting friendly

relations between them in accordance with the provisions of the

present Convention;

(c) ascertaining by all lawful means conditions and

developments in the commercial, economic, cultural and

scientific life of the receiving state, reporting thereon to the

government of the sending state and giving information to

persons interested;

(d) issuing passports and travel documents to

nationals of the sending state, and visas or appropriate

documents to persons wishing to travel to the sending state;

(e) helping and assisting nationals, both individuals

and bodies corporate, of the sending state;

() acting as notary and civil registrar and in

capacities of a similar kind, and performing certain functions of

an administrative nature, provided that there is nothing contrary

thereto in the laws and regulations of the receiving state;

(g) safeguarding the interests of nationals, both

individuals and bodies corporate, of the sending state in cases

of succession mortis causa in the territory of the receiving state,

in accordance with the laws and regulations of the receiving

state;

D-3

(h) safeguarding, within the limits imposed by the

laws and regulations of the receiving state, the interests of

minors and other persons lacking full capacity who are

nationals of the sending state, particularly where any

guardianship or trusteeship is required with respect to such

persons;

(i) subject to the practices and procedures obtaining

in the receiving state, representing or arranging appropriate

representation for nationals of the sending state before the

tribunals and other authorities of the receiving state, for the

purpose of obtaining, in accordance with the laws and

regulations of the receiving state, provisional measures for the

preservation of the rights and interests of these nationals,

where, because of absence or any other reason, such nationals

are unable at the proper time to assume the defence of their

rights and interests;

(j) transmitting judicial and extra-judicial

documents or executing letters rogatory or commissions to take

evidence for the courts of the sending state in accordance with

international agreements in force or, in the absence of such

international agreements, in any other manner compatible with

the laws and regulations of the receiving state;

(k) exercising rights of supervision and inspection

provided for in the laws and regulations of the sending state in

respect of vessels having the nationality of the sending state,

and of aircraft registered in that state, and in respect of their

crews;

(1) extending assistance to vessels and aircraft

mentioned in subparagraph (&) of this article, and to their crews,

taking statements regarding the voyage of a vessel, examining

and stamping the ship's papers, and, without prejudice to the

powers of the authorities of the receiving state, conducting

investigations into any incidents which occurred during the

voyage, and settling disputes of any kind between the master,

the officers and the seamen in so far as this may be authorized

by the laws and regulations of the sending state;

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(m) performing any other functions entrusted to a

consular post by the sending state which are not prohibited by

the laws and regulations of the receiving state or to which no

objection is taken by the receiving state or which are referred to

in the international agreements in force between the sending

state and the receiving state.

Article 36

Communication and contact with nationals.

of the sending state

1. With a view to facilitating the exercise of consular

functions relating to nationals of the sending state:

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

receiving state shall, without delay, inform the consular post of

the sending state if, within its consular district, a national of that

state is arrested or committed to prison or to custody pending

trial or is detained in any other manner. Any communication

addressed to the consular post by the person arrested, in prison,

custody or detention shall also be forwarded by the said

authorities without delay. The said authorities shall inform the

person concerned without delay of his rights under this sub-

paragraph;

INTERNATIONAL COVENANT

ON CIVIL AND POLITICAL RIGHTS

December 16, 1996, 999 U.N.T.S. 171

Recognizing that these rights derive from the inherent

dignity of the human person,

Recognizing that, in accordance with the Universal

Declaration of Human Rights, the ideal of free human beings

enjoying civil and political freedom and freedom from fear and

want can only be achieved if conditions are created whereby

everyone may enjoy his civil and political rights, as well as his

economic, social and cultural rights,

Considering the obligation of States under the Charter

of the United Nations to promote universal respect for, and

observance of, human rights and freedoms,

Realizing that the individual, having duties to other

individuals and to the community to which he belongs, is under

a responsibility to strive for the promotion and observance of

the rights recognized in the present Covenant,

Agree upon the following articles:

Part Ill

Article 6

1. Every human being has the inherent right to life.

This right shall be protected by law. No one shall be arbitrarily

deprived of his life.

2. In countries which have not abolished the death

penalty, sentence of death may be imposed only for the most

serious crimes in accordance with the law in force at the time of

the commission of the crime and not contrary to the provisions

of the present Covenant and to the Convention on the

Prevention and Punishment of the Crime of Genocide. This

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penalty can only be carried out pursuant to a final judgment

rendered by a competent court.

3. When deprivation of life constitutes the crime of

genocide, it is understood that nothing in this article shall

authorize any State Party to the present Covenant to derogate in

any way from any obligation assumed under the provisions of

the Convention on the Prevention and Punishment of the Crime

of Genocide.

4. Anyone sentenced to death shall have the nght to

seek pardon or commutation of the sentence. Amnesty, pardon

or commutation of the sentence of death may be granted in all

cases.

5. Sentence of death shall not be imposed for crimes

committed by persons below eighteen years of age and shall not

be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or

to prevent the abolition of capital punishment by any State

Party to the present Covenant.

Article 14

1. All persons shall be equal before the courts and

tribunals. In the determination of any criminal charge against

him, or of his rights and obligations in a suit at law, everyone

shall be entitled to a fair and public hearing by a competent,

independent and impartial tribunal established by law. The

Press and the public may be excluded from all or part of a trial

for reasons of morals, public order (ordre public) or national

security in a democratic society, or when the interest of the

private lives of the parties so requires, or to the extent strictly

necessary in the opinion of the court in special circumstances

where publicity would prejudice the interests of justice; but any

judgment rendered in a criminal case or in a suit at law shall be

made public except where the interest of juvenile persons

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otherwise requires or the proceedings concern matrimonial

disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall

have the right to be presumed innocent until proved guilty

according to law.

3. In the determination of any criminal charge against

him, everyone shall be entitled to the following minimum

guarantees, in full equality:

(a) To be informed promptly and in detail in a

language which he understands of the nature and cause of the

charge against him;

(b) To have adequate time and facilities for the

preparation of his defence and to communicate with counsel of

his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend

himself in person or through legal assistance of his own

choosing; to be informed, if he does not have legal assistance,

of this right; and to have legal assistance assigned to him, in

any case where the interests of justice so require, and without

payment by him in any such case if he does not have sufficient

means to pay for it;

(e) To examine, or have examined, the witnesses

against him and to obtain the attendance and examination of

witnesses on his behalf under the same conditions as witnesses

against him;

(f) To have the free assistance of an interpreter if he

cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself

or to confess guilt.

4. In the case of juvenile persons, the procedure shall

be such as will take account of their age and the desirability of

promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right

to his conviction and sentence being reviewed by a higher

tribunal according to law.

——

6. When a person has by a final decision been

convicted of a criminal offence and when subsequently his

conviction has been reversed or he has been pardoned on the

ground that a new or newly discovered fact shows conclusively

that there has been a miscarriage of justice, the person who has

suffered punishment as a result of such conviction shall be

compensated according to law, unless it is proved that the non-

disclosure of the unknown fact in time is wholly or partly

attributable to him.

7. No one shall be liable to be tried or punished again

for an offence for which he has already been finally convicted

or acquitted in accordance with the law and penal procedure of

each country.