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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 1075

## Text

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,

B-4

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).

B-7

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).

C-]

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.
C-2

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

C-3

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.

C-4

————————————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

C-5

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.

C-6

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

C-10

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2249%3A1. Public record. Not legal advice.