Further Written Explanations Submitted by Mexico

INTERNATIONAL COURT OF JUSTICE

SUBMISSION OF MEXICO IN RESPONSE TO THE WRITTEN
OBSERVATIONS OF THE UNITED STATES OF AMERICA

REQUEST FOR INTERPRETATION
OF THE JUDGMENT OF 31 MARCH 2004

IN THE CASE CONCERNING AVENA
AND OTHER MEXICAN NATIONALS

(UNITED MEXICAN STATES v. UNITED STATES OF AMERICA)

filed in the Registry of the Court

on 17 September 2008 TABLE OF CONTENTS

Page

I. Introduction........................................................................................................1

II. Statement of Facts..............................................................................................1

A. The U.S. Supreme Court’s Decision in Medellin v. Texas ....................1

B. The United States’s Failure To Support Mr. Medellín’s
Requests For a Stay Or a Reprieve........................................................2

1. Congressional Action to Implement the Avena
Judgment....................................................................................3

2. Efforts to Obtain a Stay of Execution in the Lower

Courts.........................................................................................3

3. Efforts to Obtain a Stay of Execution Through the
Clemency Process......................................................................5

C. The United States’s Failure To Request a Stay of Execution
From The U.S. Supreme Court Or To Support Mr. Medellín’s

Request...................................................................................................6

III. Mexico Is Entitled to an Interpretation of the Avena Judgment. .......................8

A. The Words and Deeds of the United States Demonstrate That a
Dispute Exists as to the Meaning of the Avena Judgment.....................8

B. The Words and Deeds of the United States Government As a
Whole Confirm the Existence of a Dispute. ........................................11

1. The Actions and Omissions of the Federal Executive
Belie Its Assurances in These Proceedings that It
Interprets the Avena Judgment to Impose an Obligation
of Result...................................................................................11

2. The U.S. Supreme Court’s Interpretation of the United

States’s Obligations Under the Avena Judgment Also Is
Wholly At Odds With Mexico’s View of the Judgment..........14

3. Congress Failed to Implement Legislation That Could
Have Prevented the Breach......................................................16

C. Mexico Is Entitled To Its Requested Interpretation of the Avena

Judgment..............................................................................................16

iiIV. The Failure of the United States to Take All Measures Necessary to
Prevent Mr. Medellín’s Execution Before He Received Review and
Reconsideration Constitutes A Breach of this Court’s Provisional
Measures Order and the Avena Judgment Itself. .............................................17

A. The Court Has Jurisdiction to Consider Mexico’s Claim That
the United States Breached the 16 July Order of Provisional

Measures..............................................................................................17

B. The Provisional Measures Order Clearly Was Compulsory................18

C. There is No Dispute That Mr. Medellín Did Not Receive the
Review and Reconsideration Mandated by Avena Before He
Was Executed.......................................................................................18

D. The United States Failed to Take All Measures Necessary to
Prevent the Execution of José Medellín...............................................19

1. The U.S. Supreme Court Failed to Exercise Its
Authority to Stay the Execution...............................................20

2. The Federal Executive Failed to Recommend a Stay of

Execution and the Governor of Texas Failed To Issue a
Reprieve...................................................................................20

E. Mexico Is Entitled To A Declaration of Breach..................................21

V. Mexico Is Entitled To Guarantees of Non-Repetition.....................................22

VI. Submissions .....................................................................................................24

iiiI. INTRODUCTION

1. This Court has already found on a provisional basis that “while it seems both
Parties regard paragraph 153(9) of the Avena Judgment as an international
obligation of result, the Parties nonetheless apparently hold different views as

to the meaning and scope of that obligation of result, namely, whether that
understanding is shared by all United States federal and state authorities and
whether that obligation falls upon those authorities.” Request for
Interpretation of the Judgment of 31 March 2004 in the Case Concerning
Avena and Other Mexican Nationals (Mexico v. United States of America)

(Mexico v. United States of America), Provisional Measures, Order of 16 July
2008 (hereafter “Provisional Measures Order”), ¶ 55.

2. The United States’s Written Observations of 29 August only confirm the
Court’s reasoning at the provisional measures stage. The assertion of the
United States that only the assurances of its Agent may be considered by this

Court in determining the existence of a dispute is tantamount to an argument
that the Court may not look beyond a State’s words to determine the
understanding reflected in its deeds. Indeed, on the view of the United States,
a State could evade Article 60 jurisdiction simply by making assurances that
there was no dispute. Nothing in this Court’s jurisprudence contemplates such

a result.

3. There is perhaps no better evidence of a dispute than the fact of the execution
of Mr. José Ernesto Medellín on 5 August. The objective circumstances
leading to the execution of one of the Mexican nationals subject to the Avena
Judgment and this Court’s 16 July Order leaves no room for doubt: despite

the United States’s protestations, the United States and Mexico have differing
views as to the scope and meaning of the obligation of result imposed by this
Court’s Judgment in Avena. In particular, the record of acts and omissions by
the Federal Executive, the U.S. Supreme Court, and the U.S. Congress
confirm that there is a dispute and that hence, this Court is properly seized of

Mexico’s Request.

4. On the basis of the record before the Court, Mexico is entitled to an
interpretation of paragraph 153(9) of the Avena Judgment in the terms it has
requested. It is also entitled to a declaration that the United States has
breached its obligation under Article 94(1) of the U.N. Charter to abide by the

Court’s Order of 16 July indicating provisional measures and guarantees by
the United States of non-repetition of the breach of the Judgment.

II. STATEMENT OF F ACTS

A. The U.S. Supreme Court’s Decision in Medellin v. Texas

5. As this Court will recall, the Supreme Court granted review of Mr. Medellín’s

case in November 2007 to determine (1) whether the President of the United States acted within his authority when he determined that individual states
must comply with the United States’s treaty obligation to give effect to the
Avena Judgment, and (2) whether state courts were independently bound to
give effect to the Avena Judgment in the cases of the fifty-one Mexican
nationals whose rights were adjudicated therein. Medellin v. Texas, 127 S. Ct.
2129 (2007) (order granting writ of certiorari).

6. The United States actively participated in the proceedings asamicus curiae,
but its support for enforcement of the Avena Judgment was expressly
conditioned on the President’s executive determination that compliance was in
the best interests of the United States. See Brief for the United States as
Amicus Curiae Supporting Petitioner at 6, Medellin v. Texas, 128 S. Ct. 1346

(2008) (No. 06-984) (“[W]hile petitioner is entitled to review and
reconsideration by virtue of the President’s determination, such review and
reconsideration would not be available to petitioner in the absence of the
President’s determination.”) (emphasis in original) .Thus, although the United
States acknowledged an “international law obligation to comply with the ICJ’s
decision in Avena,” id. at 4, the United States contended that the Judgment

was not independently enforceable in domestic courts absent intervention by
the President, id. at 7, 27-29.

7. While rejecting the United States’s argument about the authority of the
President to implement a treaty obligation, the Supreme Court expressly
adopted the United States’s argument as to the lack of independent

enforceability of the Judgment in domestic courts. Medellin v. Texas, 128 S.
Ct. 1346, 1358 (2008) (hereafter “Medellin II”). Hence, the Court held that
neither the Avena Judgment on its own, nor the Judgment in conjunction with
the President’s determination to comply, constituted directly enforceable
federal law that precluded Texas from applying state procedural rules that
barred all review and reconsideration of Mr. Medellín’s Vienna Convention

claim. Id. at 1353.

8. The Supreme Court did confirm, however, that there are ample means by
which the United States still can come into compliance with its obligations
under Avena. In particular, the Court noted that “Congress is up to the task of
implementing non-self-executing treaties,” id. at 1366, and that once a treaty is

“ratified without provisions clearly according it domestic effect,” the passage
of legislation by Congress can make a non-self-executing treaty domestically
enforceable, id. at 1369.

B. The United States’s Failure To Support Mr. Medellín’s Requests For a
Stay Or a Reprieve

9. Almost immediately following the Supreme Court’s decision, a Texas state
court scheduled Mr. Medellín’s execution for 5 August 2008. Thereafter, Mr.
Medellín sought a reprieve from his execution in multiple state and federal
courts and through the clemency process, relying in part on proposed

2 legislation introduced in the U.S. Congress on 14 July 2008 to give the Avena
Judgment domestic legal effect. The Federal Executive declined to offer its
support in any forum, and none of those fora provided relief.

1. Congressional Action to Implement the Avena Judgment

10. On 14 July 2008, Members of the House of Representatives of the U.S.

Congress introduced legislation to give the Avena Judgment domestic legal
effect. The “Avena Case Implementation Act of 2008” would grant foreign
nationals a right to judicial review of their convictions and sentences in light
of Vienna Convention violations in their cases. See Avena Case
Implementation Act of 2008, H.R. 6481, 110th Cong. (2d Sess. 2008) (2008)
(attached as Exhibit A). The proposed bill specifically authorizes courts to

provide “any relief required to remedy the harm done by the violation [of
rights under Article 36 of the Vienna Convention], including the vitiation of
the conviction or sentence where appropriate.” Id. at § 2(b)(2). The bill was
introduced by Howard L. Berman, Chairman of the Committee for Foreign
Affairs and Vice Chairman of the Judiciary Committee, and referred to the

Judiciary Committee for consideration. Since that time, the Chairman of the
Judiciary Committee, John Conyers, Jr., and Committee Members Zoe
Lofgren and William D. Delahunt have joined as co-sponsors of the bill.

11. On 1 August 2008, the Chairman of the House Judiciary Committee (John
Conyers, Jr.), the Chairman of the House Judiciary Subcommittee on the
Constitution, Civil Rights, and Civil Liberties (Jerome Nadler), and the

Chairman of the House Judiciary Subcommittee on Crime, Terrorism and
Homeland Security (Robert “Bobby” Scott) wrote a letter to Governor Rick
Perry of Texas, explaining that there was insufficient time remaining before
Mr. Medellín’s execution to pass the proposed legislation and requesting that
he stay Mr. Medellín’s execution. See Letter from Rep. John Conyers, Jr.,

Rep. Jerrold Nadler, and Rep. Robert “Bobby” Scott to Governor Rick Perry
(August 1, 2008) (attached as Exhibit C).

2. Efforts to Obtain a Stay of Execution in the Lower Courts

12. On 28 July 2008, Mr. Medellín filed an application for a writ of habeas corpus
in the Texas Court of Criminal Appeals, and along with it, an application for a
stay of execution. Mr. Medellín argued that his constitutional rights to life and

due process of the law entitled him to reasonable access to the remedy
mandated by this Court in Avena, and that to execute him before the
competent political actors were given a reasonable opportunity to convert the
nation’s international law obligation under the Avena Judgment into a
justiciable legal right would amount to an unconstitutional deprivation of his

right to life without due process of law. See Second Subsequent Application
for Habeas Corpus at 20-22, 24-26, Ex parte Medellin, No. WR-50,191-03
(Tex. Crim. App. July 28, 2008). In addition, Mr. Medellín argued that his
execution without having received the required review and reconsideration

3 would impinge upon the constitutional authority of Congress to give effect to
the United States’s obligation under Article 94(1) of the U.N. Charter to
comply with the Avena Judgment. Id. at 20-22; Application for a Stay of
Execution at 12-14, Ex parte Medellin, No. WR-50,191-03 (Tex. Crim. App.
July 28, 2008). In his stay application, Mr. Medellín asked the Court to delay
his execution to allow the competent political authorities a reasonable

opportunity to implement the Judgment. Application for a Stay of Execution
at 8-10, Ex parte Medellin, No. WR-50,191-03 (Tex. Crim. App. July 28,
2008). Mr. Medellín also advised the Texas court of this Court’s 16 July
provisional measures Order, and urged the court to stay his execution as a
matter of comity and respect for this Court. Id. at 19-22.

13. The United States did not file a brief in support of Mr. Medellín’s motion for
stay of execution in the Texas court.

14. On 31 July 2008, the Texas Court of Criminal Appeals denied Mr. Medellín’s
motion for stay of execution and dismissed his habeas application. Ex parte
Medellin, No. 50,191-03, 2008 WL 2952485 (Tex. Crim. App. July 31, 2008)

(per curiam) (attached as Exhibit D). The Court expressly refrained from
conducting review and reconsideration of his claim. See id. at *2. Instead, the
court dismissed his application as procedurally barred under Texas law
without articulating its reasons. Id.

15. Judge Price filed a concurring statement in which he observed that the Texas
court’s precedent and governing legislation prevented it from granting a stay.

But at the same time, he urged the Texas Governor to act, noting that “[i]t
would be an embarrassment and a shame to the people of Texas and the rest of
the country . . . if we were to execute the applicant despite our failure to honor
the international obligation embodied in the Avena judgment when legislation
may well be passed in the near future by which that obligation would become,

not merely precatory, but legally (and retroactively) binding upon us.” Id. at
*4 (Price, J., concurring).

16. Judge Cochran also filed a concurring opinion and speaking only for herself,
claimed that Mr. Medellín “failed in his duty to inform [the] authorities that he
was a Mexican citizen.” Id. (Cochran, J., concurring). She admitted,
however, that Mr. Medellín had told the police during his interrogation that he

was born in Mexico—a fact this Court has held is sufficient to trigger the
authorities’ obligations under Article 36. Id. at *4 n.1; Avena and Other
Mexican Nationals (Mexico v. United States of America), Judgment, I.C.J.
Reports 2004, p.121, ¶ 89. She next faulted Mr. Medellín for not raising his
Article 36 violation at the time of trial, notwithstanding the fact that the

authorities never advised him of his consular rights. With regard to Mr.
Medellín’s argument that this Court’s Avena Judgment precluded the
application of procedural default rules in this context, Judge Cochran
observed: “We would give even the Devil the benefit of our American law, but
if we cut down the laws to suit another sovereign that operates under a

4 different system of justice, we could not stand upright in the lawless winds
that would then blow.” Ex parte Medellin, 2008 WL 2952485, at *6
(Cochran, J., concurring). She then described in detail the facts of the crime
for which Mr. Medellín had been convicted, and concluded that there was “no
likelihood” that Mr. Medellín was prejudiced by the authorities’ violation of
Article 36. Id. at *8.

17. Mr. Medellín next filed an application for a stay of execution and a motion for
authorization to file a successive habeas corpus application in the U.S. Court
of Appeals for the Fifth Circuit, in which he reiterated the arguments that he
had raised in the Texas court. The motions were denied as procedurally barred
on 4 August 2008. Medellin v. Quarterman, No. 08-20495 (5th Cir. Aug. 4,

2008) (attached as Exhibit J).

18. The United States did not file a brief in support of Mr. Medellín’s motion for
stay in the Fifth Circuit.

3. Efforts to Obtain a Stay of Execution Through the Clemency
Process

19. Parallel to his efforts to obtain a stay of execution in the courts, Mr. Medellín
filed an application for commutation of his sentence or for a reprieve from
execution with the Texas Board of Pardons and Paroles. Commenting on
reports of this Court’s 16 July Order in the press, the Governor’s office stated:
“The world court has no standing in Texas and Texas is not bound by a ruling
or edict from a foreign court.” Allan Turner & Rosanna Ruiz, Texas to World

Court: Executions Are Still On, H OUSTON C HRON ., July 17, 2008, at A1.

20. In its written submissions to this Court dated 29 August 2008, the United
States explained that it had engaged in extensive discussions with the Board
and other Texas officials regarding Mr. Medellín’s case. At no time, however,
did the United States represent that it had asked Texas to stay Mr. Medellín’s

execution. Although Secretary of State Condoleezza Rice and Attorney
General Michael Mukasey sent a letter to the Texas Governor requesting
Texas’s “help” in carrying out the nation’s international legal obligations
under the Avena Judgment, they did not ask the Governor to grant Mr.
Medellín a reprieve from his execution. See Letter from Condoleezza Rice,
U.S. Secretary of State, and Michael Mukasey, U.S. Attorney General, to Rick

Perry, Governor of Texas (17 June 2008) (attached as Exhibit 2 to Written
Observations of the United States).

21. On 4 August 2008, the Board unanimously rejected Mr. Medellín’s application
for commutation and a reprieve. It issued no reason for the denial. See Letter
from Maria Ramirez, Legal Support Director, Texas Board of Pardons and

Paroles, to Sandra Babcock (4 August 2008) (attached as Exhibit 5 to Written
Observations of the United States). On 5 August 2008, the Governor of Texas
denied a separate request for a thirty-day reprieve.

522. The United States submitted a letter from Governor Perry as an Exhibit to its
Written Submissions dated 29 August 2008. In the letter, Governor Perry
declared that if any Avena defendant detained in Texas “has not previously
received a judicial determination of his claim of prejudice under the Vienna
Convention and seeks such review in a future federal habeas proceeding, the

State of Texas will ask the reviewing court to review the claim on the merits.”
Letter from Rick Perry, Governor of Texas, to Condoleezza Rice, U.S.
Secretary of State, and Michael Mukasey, U.S. Attorney General, at 1 (July
18, 2008) (attached as Exhibit 3 to Written Observations of United States). To
date, however, the Texas Attorney General has failed to ask any court to

conduct review and reconsideration of any Mexican national’s conviction and
sentence in accordance with the criteria set forth in Avena. Instead, the Texas
Attorney General’s office has continued to argue that each national’s Vienna
Convention claim is procedurally barred and/or that judicial decisions issued
before Avena that failed to give full weight to the treaty violation constitute

review and reconsideration.

C. The United States’s Failure To Request a Stay of Execution From The
U.S. Supreme Court Or To Support Mr. Medellín’s Request.

23. On 31 July 2008, Mr. Medellín requested the U.S. Supreme Court to stay his
1
execution and grant review of his case. Once again, he argued that his
constitutional right not to be deprived of his life without due process of law
would be violated if Texas carried out his execution without giving Congress a
reasonable opportunity to implement the right to judicial review and
reconsideration mandated by Avena. See Petition for Writ of Certiorari at 15,

18-19, Medellin III; Petition for Writ of Habeas Corpus at 15, Medellin III;
Motion to Recall and Stay the Court’s Mandate at 4, Medellin III; Application
for Stay of Execution at 2, 8, Medellin III. He also urged the Court to grant a
stay out of comity and respect for this Court’s Order indicating provisional
measures. See Application for Stay of Execution at 4, 18-22, Medellin III.
And he pointed out that his execution would put the United States in breach of

its international legal obligations. See Petition for Writ of Certiorari at 15, 26,

1
Because Mr. Medellín sought relief pursuant to three separate procedural vehicles,
the Supreme Court assigned multiple docket numbers to the proceedings.
Petition for Writ of Certiorari, Medellin v. Texas, No. 08–5573 (U.S. July 31,
2008) (attached as Exhibit E); Petition for Writ of Habeas Corpus, In re Medellin,

No. 08–5574 (U.S. July 31, 2008) (attached as Exhibit F); Motion to Recall and
Stay the Court’s Mandate, Medellin v. Texas, No. 06–984 (U.S. July 31, 2008)
(attached as Exhibit G); Application for Stay of Execution, Medellin v. Texas,
Nos. 06–984 (08A98), 08–5573 (08A99), 08–5574 (08A99) (U.S. July 31, 2008)
(attached as Exhibit H). The Court’s decision on each of the applications

adjudicated thus far was reported at 554 U.S. __, 2008 WL 3821478 (August 5,
2008) (attached as Exhibit K). For simplicity, that decision and all of the
constituent proceedings are referred to herein collectively as “Medellin III.”

6 Medellin III; Petition for Writ of Habeas Corpus at 15, Medellin III; Motion to
Recall and Stay the Court’s Mandate at 4, Medellin III; Application for Stay of
Execution at 1, Medellin III.

24. In opposing the application, the State of Texas contended that the possibility
of legislation was too remote and further, that Mr. Medellín had already
received review and reconsideration consistent with theAvena Judgment by

virtue of a state court decision issued prior to Avena that analyzed the Vienna
Convention violation as a matter of whether it qualified as a constitutional
violation.

25. On reply, Mr. Medellín observed that the United States had already recognized
that the prior treatment of Mr. Medellín’s Article 36 claim in the Texas courts

did not comply with Avena. Mr. Medellín directed the Supreme Court to the
oral argument of the United States in the Texas Court of Criminal Appeals,
where the United States asserted that the prior state-court review did not
comply with Avena’s review and reconsideration requirement because the
prior review “d[id] not give full and independent weight to the treaty violation,

which is what Avena requires.” Petitioner’s Reply to Respondent’s Brief in
Opposition, Medellin II (attached as Exhibit I) (citing Transcript of Oral
Argument, Vol. 1 at 49:8-11, Ex parte Medellin, 223 S.W.3d 315 (Tex. Crim.
App. 2006) (No. AP-75,207)).

26. On 5 August 2008, by a vote of 5-4, at approximately 9:45 p.m., the Supreme
Court denied Mr. Medellín’s petition for writ of habeas corpus and his request

for a stay of execution. The Court held that the possibility that Congress
would pass legislation implementing the Avena Judgment was “too remote to
justify an order from this Court staying the sentence imposed by the Texas
courts.” Medellin III, 2008 WL 3821478, at *1.

27. Four justices would have granted a stay in order to request the views of the

United States Executive Branch on the matter. Justices Souter and Ginsburg
noted the representations made by the United States to this Court, in which the
Agent of the United States advised the Court that the United States would
“continue to work to give [the Avena] Judgment full effect, including in the
case of Mr. Medellín.” Id. at *2 (citing Provisional Measures Order, ¶ 37).

28. The United States declined to intervene in support of Mr. Medellín’s

applications to the Supreme Court or any other court. The Supreme Court
assumed from the Executive’s silence that it did not support the grounds for a
stay of execution advanced by Mr. Medellín, observing that “[t]he Department
of Justice of the United States is well aware of these proceedings and has not
chosen to seek our intervention.” Id. at *1.

29. The Supreme Court itself did not purport to conduct the review and
reconsideration required by Avena, either as to the conviction or the sentence.
Nor did it suggest that any other U.S. court had. In denying the stay of

7 execution, the majority stated its view that “[t]he beginning premise for any
stay, and indeed for the assumption that Congress or the [Texas] legislature
might seek to intervene in this suit, must be that petitioner’s confession was

obtained unlawfully.” Id. In dissent, Justice Breyer observed that the
circumstances surrounding Mr. Medellín’s confession were not dispositive of
his claim. Id. at *3-4. He pointed out that “the question before us is whether
the United States will carry out its international legal obligation to enforce the

decision of the ICJ. That decision requires a further hearing to determine
whether a conceded violation of the Vienna Convention (Texas’ failure to
inform petitioner of his rights under the Vienna Convention) was or was not
harmless.” Id. at *4. Justice Breyer also cited this Court’s 16 July Order as
one of several grounds justifying a stay of execution. Id. at *3.

30. Immediately following the Supreme Court’s denial of relief, Texas officials
executed Mr. Medellín by lethal injection.

III. M EXICO IS ENTITLED TO AN INTERPRETATION OF THE AVENA J UDGMENT .

A. The Words and Deeds of the United States Demonstrate That a Dispute
Exists as to the Meaning of the Avena Judgment.

31. In its Written Observations of 29 August, the United States reiterates its
argument that there is no dispute, and hence no jurisdiction, because the

Executive Branch shares Mexico’s understanding of the Avena Judgment to
establish an obligation of result. See Written Observations of the United
States, ¶ 32. But the United States also concedes, as it must, that statements
by representatives of a State, offered in the context of a contentious

proceeding, do not conclude the Court’s analysis. See id. ¶ 27 (“The Court has
made clear that a party’s own characterization of whether a dispute exists is
not dispositive….”). Instead, “[w]hether there exists an international dispute
is a matter for objective determination. The mere denial of the existence of a
dispute does not prove its non-existence.” Interpretation of Peace Treaties

with Bulgari2, Hungary and Romania, Advisory Opinion, I.C.J. Reports 1950,
p. 65, at 74.

2
See also South West Africa (Ethiopia v South Africa; Liberia v South Africa)
Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 319, at p. 328 (“The
Court will itself determine the real dispute that has been submitted to it. It will

base itself not only on the Application and final submissions, but on diplomatic
exchanges, public statements, and other pertinent evidence.”) (citations omitted);
Fisheries Jurisdiction (Spain v. Canada), Judgment, I.C.J. Reports 1998, p. 432,
¶ 31; Applicability of the Obligation to Arbitrate under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, I.C.J.

Reports 1988, p. 12, ¶ 35.

832. As this Court confirmed when it issued provisional measures in these
proceedings, “‘the manifestation of the existence of the dispute in a specific
manner, as for instance by diplomatic negotiations, is not required’ for the
purposes of Article 60, nor is it required that ‘the dispute should have
manifested itself in a formal way[.]’” Provisional Measures Order, ¶ 54
(quoting Interpretation of Judgments Nos. 7 and 8 (Factory at Chorzów),

Judgment No. 11, 1927, P.C.I.J. Series A, No. 13, pp. 10-11). As a result,
recourse may be had to this Court “as soon as the interested States had in fact
shown themselves as holding opposing views in regard to the meaning or scope
of a judgment of the Court.” Id. (emphasis added).

33. Applying those basic principles, this Court held that that “while it seems both

Parties regard paragraph 153(9) of the Avena Judgment as an international
obligation of result, the Parties nonetheless apparently hold different views as
to the meaning and scope of that obligation of result, namely, whether that
understanding is shared by all United States federal and state authorities and
whether that obligation falls upon those authorities.” Id. ¶ 55.

34. The United States’s only response to the Court’s holding is to point out that
there is a distinction between the rules for imputation of a wrongful act as a
matter of the law of state responsibility and the authority to speak on behalf of
a State. Mexico readily acknowledges the distinction between these two legal
rules. That distinction, however, does not save the United States’s position
here.

35. As this Court has just held, the existence of a dispute over the meaning and
scope of a judgment of the Court giving rise to jurisdiction to provide an
interpretation of that judgment depends not solely upon the statements of a
State, in the person of its agent, before this Court, but upon a full assessment
of all the objective circumstances, including the statements of authorized

officials of the government when dealing with the subject matter of the
judgment and its acts, of omission as well as commission, in dealing with that
subject matter. Here, the Court is fully entitled to assess the position of the
United States as reflected not simply in its arguments before this Court, but in
its words and deeds when faced with the imminent and glaring prospect that
Texas would execute Mr. Medellín in violation of the Avena judgment.

36. Accordingly, even if the Federal Executive generally conducts international
relations on behalf of the United States, see Written Observations of the
United States, Part II.B, it is still the case that its views and acts in other fora
(including the U.S. Supreme Court), as well as the views and acts of other
competent organs of federal and state government are relevant to the objective

determination of the dispute. See Provisional Measures Order, ¶ 55 (indicia of
a “dispute” include “whether that understanding [of an obligation of result] is
shared by all United States federal and state authorities and whether that
obligation falls upon those authorities”). For instance, the Court in the
Headquarters Agreement case was called upon to determine the existence of a

9 dispute between the United States and the United Nations that was occasioned
by the enactment of domestic legislation inconsistent with the nation’s
international obligations under the U.N. Headquarters Agreement.
Applicability of the Agreement to Arbitrate Under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, ICJ
Reports 1988, p. 12. Specifically, the U.S. Congress had enacted legislation

that required closure of an office of the Palestine Liberation Organization
(“PLO”) Observer Mission to the United Nations. Id. ¶ 15. The United States
argued that the mandatory dispute resolution procedures set forth in the
Headquarters Agreement had not yet come into play because the office had not
yet been closed and it thus “had not yet concluded that a dispute existed.” Id.

¶¶ 17, 22, 39.

37. The Court rejected the argument. The Court reiterated that the existence of a
dispute is “a matter for objective determination” and cannot depend upon the
mere assertions or denials of the parties.” Id. ¶ 35 (quoting Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, Advisory Opinion, I.C.J.
Reports 1950, p. 65, at 74). Furthermore, the Court stated that while the

existence of a dispute presupposes a claim, that claim can arise out of “the
behaviour of,” as well as “a decision by,” one of the parties. Id. ¶ 42. In
determining the existence of a dispute, the Court thus looked beyond the
statements of the parties to the objective circumstances, including events that
occurred both prior and subsequent to the filing of the case that were “of

possible relevance to, or capable of throwing light on” the question of a
dispute. Id. ¶ 23. Although the PLO office had not yet been closed, the Court
concluded—based upon the enactment of the legislation, the legal provision
requiring its automatic implementation ninety days later, and the U.S.
Attorney General’s expressed intent to implement it absent a contrary ruling
from a domestic court—that a dispute existed between the parties. Id. ¶¶ 42-

43.

38. The United States’s reliance on the Gulf of Maine case is misplaced. In that
case, the statement rejected by the Court was the technical opinion of a mid-
level federal official who expressly disclaimed authority to commit the United
States to any particular position. See Delimitation of the Maritime Boundary

in the Gulf of Maine Area (Canada v. United States of America), Judgment,
I.C.J. Reports 1984, p. 246, ¶ 133. In addition, the Court specifically noted
that the official “was acting within the limits of his technical responsibilities
and did not seem aware that the question of principle which the subject of the
correspondence might imply had not been settled, and that the technical
arrangements he was to make with his Canadian correspondents should not

prejudge his country’s position in subsequent negotiations between the
governments.” Id. ¶ 139. In contrast, the federal and state organs whose
words and deeds belie the position of the United States before this Court
operate at the highest levels of the executive, judicial and legislative branches,
and those words and deeds go precisely to the question of principle before this

Court.

1039. In effect, the United States argues that in determining whether there is a
dispute, this Court may only take account only of the litigation position before
this Court of a State that denies the existence of the dispute. In other words,
on the United States’s view, a State’s characterization of a claim before this
Court would be dispositive. As this Court has just held, see Provisional

Measures Order, ¶ 55, that cannot be the rule, for the simple reason that one
party to a judgment could thereby defeat the rights of another party seeking an
interpretation to which it might be entitled by adopting a position before this
Court that is at odds with a fair assessment of the “objective circumstances”
by which the Court determines its jurisdiction. Objectively assessing the

words and deeds of the responsible United States actors here—the “objective
circumstances” by which this Court’s established jurisprudence teaches it must
determine the existence or not of a dispute—there can be no question that the
parties hold different understandings of the meaning and scope of the Avena
Judgment.

B. The Words and Deeds of the United States Government As a Whole
Confirm the Existence of a Dispute.

40. The United States argues as if Mexico relies for the existence of a dispute
exclusively on the actions of the State of Texas—which, as the United States

concedes, does not view the Avena Judgment as imposing an obligation of
result. See, e.g., Written Observations of the United States, ¶ 36. But that is
not the case. As Mexico stated in its Request for Interpretation, reiterated at
the provisional measures hearing, and elaborates below, each of the Federal
Executive, Judiciary, and Legislature have failed to treat the Avena Judgment
3
as imposing an obligation of result.

1. The Actions and Omissions of the Federal Executive Belie Its
Assurances in These Proceedings that It Interprets the Avena
Judgment to Impose an Obligation of Result.

41. Mexico recognizes that, so long as the means chosen by the United States to

comply are consistent with the obligation imposed by Avena to provide review
and reconsideration by judicial process, they are a matter for its domestic law.
Here, the Federal Executive successfully urged upon the U.S. Supreme Court a
position as to the available means of compliance within the domestic legal
system that made it enormously more difficult for the United States to comply

with this Court’s Judgment, and then, having made compliance more difficult,

3
Seee,.g. , Request for Interpretation, ¶¶ 13, 19, 31, 36; Provisional Measures
Order, ¶¶ 48 (“[W]hereas, in Mexico’s view, the fact that ‘[n]either the Texas
executive, nor the Texas legislature, nor the federal executive, nor the federal

legislature has taken any legal steps at this point that would stop th[e] execution
[of Mr. Medellín] from going forward…reflects a dispute over the meaning and
scope of the Avena’ Judgment[.]”).

11 it failed to take the steps necessary to achieve compliance in the situation it
helped to create. Its course of conduct reflects its disagreement with Mexico
as to the obligation imposed by the Judgment, and that disagreement—unlike
the underlying matters of U.S. domestic law—is central to Mexico’s Request
here.

42. When the Federal Executive intervened as anamicus curiae in the Medellin II

proceedings to present the views of the United States, it argued that the Avena
Judgment could be given effect in the U.S. domestic legal system only on the
President’s authority to determine compliance with an ICJ judgment. See
supra, ¶ 6. In support of that position, the Federal Executive argued that
Article 94(1) was directed only to the political branches of States Party to the

U.N. Charter rather than to the State Party as a whole. Brief for United States
as Amicus Curiae Supporting Petitioner at 27-29, Medellin II. There is no
support for that reading of Article 94(1) in either its text, its object and
purpose, or principles of general international law. The Federal Executive
also argued in prior proceedings that the recourse to the Security Council
made available by Article 94(2) supported its reading of Article 94(1). Brief

for the United States as Amicus Curiae Supporting Respondent at 35, Medellin
v. Dretke, 544 U.S. 660 (2005) (No. 04-5928). In other words, the Federal
Executive argued that the prospect of noncompliance reflected in Article 94(2)
counseled in favor of reading Article 94(1) to restrict the domestic means of
achieving the compliance required by that Article. That reading of Article 94,

both in its parts and in the whole, was fundamentally erroneous. See infra,
Part III.B.2.

43. The Supreme Court adopted the Executive’s interpretation of Article 94—the
very treaty requiring compliance—to reject its own authority to order
compliance. In reaching that result, the Court specifically noted that “the
United States’ interpretation of a treaty ‘is entitled to great weight,’” and in

that connection observed that “[t]he Executive Branch has unfailingly adhered
to its view that the relevant treaties do not create domestically enforceable
federal law.” Medellin II, 128 S. Ct. at 1361 (citations omitted). The Supreme
Court rejected, however, the Executive’s assertion that the President, acting
alone, had the constitutional authority to order compliance. As to such matters

of domestic constitutional law, as opposed to questions of treaty interpretation,
the Court generally does not defer to the Executive’s interpretation. The
Supreme Court thus held that the obligation to comply with Avena was not
directly enforceable in the U.S. legal system absent implementing legislation
by Congress. See supra, Part II.A.

44. Having prompted an application of domestic law, premised in large part on an

erroneous interpretation of Article 94 of the U.N. Charter, that precluded the
most straightforward means of implementing the Avena Judgment, the Federal
Executive then took no effective steps whatsoever to bring about compliance
within the domestic law regime left in the wake of the Medellin II decision.
While the United States points to several letters politely requesting the

12 cooperation of Texas authorities, there is no dispute about what it did not do.
And what it did not do unequivocally reflects the disagreement between
Mexico and the United States as to the obligation imposed byAvena.

45. First, notwithstanding its acknowledgement that Mr. Medellín had not yet
received review and reconsideration as mandated by Avena, see supra ¶ 25,
the Federal Executive did not appear in the Texas trial court to support Mr.

Medellín’s request—let alone make the request itself—that the Texas trial
court exercise its discretion to defer the setting of an execution date until
Congress had had the opportunity to make the decision that the U.S. Supreme
Court had just held was constitutionally entrusted to it: to determine whether
the United States would comply with Avena.

46. Second, the United States did not support Mr. Medellín’s application to the
Texas Court of Criminal Appeals seeking a stay of execution, even though by
then several leading Members of Congress had proposed legislation designed
to implement the Avena Judgment in accordance with the Supreme Court’s
Medellin II decision. See supra, Part II.B.2. By that point, the United States

had already stated to this Court during the course of the June provisional
measures hearing that it agreed with Mexico’s interpretation of the judgment
to impose an obligation of result, yet it stood on the sidelines during judicial
proceedings initiated by Mr. Medellín to bring about that result. See supra,
Part II.B.

47. Third, the Federal Executive took no steps to support legislation proposed in

Congress that would implement Avena or to assist in moving forward the
legislation that Members of Congress introduced.

48. Finally, the Federal Executive remained on the sidelines when, the Texas
courts having rejected his request for relief and the Governor of Texas having
given every indication that he would too, Mr. Medellín petitioned the U.S.

Supreme Court to issue a stay to allow Congress time to act. Again, that
failure to speak proved dispositive, as the Supreme Court relied in large part
on the silence of the Federal Executive as justification to deny the relief
requested. In a terse two page opinion, the Court specifically noted that “[t]he
Department of Justice of the United States is well aware of these proceedings
and has not chosen to seek our intervention.” Medellin III, 2008 WL 3821478,

at *1. The Court also noted that”[n]either the President nor the Governor of
the State of Texas has represented to us that there is any likelihood of
congressional or state legislative action.” Medellin III, 2008 WL 3821478, at
*1. Describing the Federal Executive’s silence as “no surprise,” the Court also
stated, without citation and in the absence of any argument to that effect by

Texas or anyone else, that “[t]he United States has not wavered in its position
that petitioner was not prejudiced by his lack of consular access.” Id. That
statement was factually erroneous, as the Federal Executive, while stating
unequivocally that Mr. Medellín had never received review and
reconsideration, had never taken a position as to whether the review and

13 reconsideration mandated by Avena would result in a finding of prejudice
within the meaning of the Judgment. The Executive’s silence ensured that the
Supreme Court’s error went uncorrected.

49. In sum, the Federal Executive, having prompted a holding that U.S. courts
could not themselves comply withAvena based in large part on an erroneous
interpretation of Article 94, and then having had its own assertion of executive

authority to implement the Judgment rejected, took no steps either to bring
about implementing legislation or to require Texas to defer execution until
such legislation could be passed. That course of conduct reflects a
fundamental dispute between Mexico and the United States about the United
States’s obligation to bring about a specific result by any necessary means.

Whereas Mexico considers that the United States must take any action
necessary to make the review and reconsideration ordered in Avena effective
as part of an obligation of result, the United States contents itself with steps
insufficient to bring about that result. These acts and omissions demonstrate
that for the United States, the obligation imposed is merely one of means.

2. The U.S. Supreme Court’s Interpretation of the United States’s
Obligations Under the Avena Judgment Also Is Wholly At Odds
With Mexico’s View of the Judgment.

50. The United States asserts that “[i]n light of the well-established authority of
the U.S. federal executive to speak on behalf of the United States, there is no
reason to inquire into … the Supreme Court’s understanding of the Avena

Judgment,” and that “to the extent the Supreme Court’s understanding can be
discerned, it would have to be regarded as sharing Mexico’s requested
interpretation.” Written Observations of the United States, ¶¶ 52, 53. Mexico
disagrees.

51. As an initial matter, the Supreme Court isthe highest federal judicial authority

of the United States. U.S. C ONST . art. III, § 1. Its interpretations of treaty
obligations are conclusive as a matter of domestic law and binding on all state
and federal courts and officials—including the Federal Executive. See
generally Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173, 177 (1803). And
as discussed supra in Part III.A, the views of the Supreme Court as to the
scope and meaning of the United States’s treaty obligations are relevant for

purposes of the objective determination of a dispute.

52. Contrary to the United States’s assertion that the Supreme Court “shar[es]
Mexico’s requested interpretation,” the Supreme Court clearly disavowed—in
both the Medellin II decision and in its denial of a stay of execution—the view
advanced by the Federal Executive in these proceedings that theAvena

Judgment imposes an obligation of result. In Medellin II, the Supreme Court
held that state courts were free to breach the nation’s obligations under the
Avena Judgment absent new federal legislation. 128 S. Ct. at 1356-57. That
holding was based upon an interpretation of Article 94 of the U.N. Charter

14 advanced by the Federal Executive that is fundamentally incompatible with
Mexico’s interpretation in three respects.

53. First, the Supreme Court construed Article 94(1) of the U.N. Charter not as an
obligation of result binding on all constituent organs of the United States—

including the state and federal judiciaries—but instead as a “commitment on
the part of the U.N. Members to take future action through their political
branches to comply with an ICJ decision.” Id. at 1358 (citing argument of the
United States). The Court reasoned that because Article 94(1) “does not
provide that the United States ‘shall’ or ‘must’ comply with an ICJ decision,”
4
it “is not a directive to domestic courts” to provide immediate legal effect. Id.
In effect, the Court found that the expression of the obligation to comply in
Article 94(1) somehow precluded the judicial branch—the authority best
suited to implement the obligation imposed by Avena—from taking steps to
comply. There is nothing in the text or object and purpose of Article 94(1)
that suggests such an incongruous result. It is moreover fundamentally

inconsistent with the interpretation of the Avena Judgment as imposing an
obligation of result incumbent on all constituent organs, including the
judiciary. Needless to say, Mexico does not agree with the Supreme Court’s
interpretation.

54. Second, in construing Article 94, the Supreme Court held, at the urging of the
Federal Executive, that the provisions of Article 94(2) contemplating
enforcement measures in the Security Council for failure to comply with
Article 94(1) “fatally undermined” the proposition that the obligation was
presently enforceable in United States courts. Id. at 1360. In effect, the

Supreme Court took the provision of an enforcement mechanism at the
international level, which was meant to promote compliance, as a directive to
the States Party to facilitate breach: to preserve what the Supreme Court
called the “option of noncompliance contemplated by Article 94(2).” Id. This
interpretation of the text of Article 94 turns the principle of pacta sunt
servanda—that parties should perform their treaty obligations—on its head.

Again, Mexico does not agree.

55. Finally, the Supreme Court construed the operative language of theAvena
Judgment as a “mere suggestion” that the judicial process would be best suited
to provide the requisite review and reconsideration, and concluded that the

Avena Judgment itself “confirm[s] that domestic enforceability in court is not

4
The Supreme Court considered this Court’s Statute to provide further evidence of
the unenforceable nature of the Avena Judgment in domestic courts. In particular,
the Supreme Court viewed Article 59’s express limitation of the binding force of
this Court’s Judgment to the State parties concerned as a barrier to the application

of the Judgment in judicial proceedings involving one of the nationals whose
claims were explicitly espoused by Mexico and adjudicated therein. Medellin II,
128 S. Ct. at 1360.

15 part and parcel of an ICJ judgment.” See id. Once again, Mexico does not
agree.

56. Quite apart from the Supreme Court’s erroneous interpretation of an
international law instrument, it is clear that that Court does not share Mexico’s
view of the Avena Judgment—that is, that the operative language establishes
an obligation of result reaching all organs, including the federal and state

judiciaries, that must be discharged irrespective of domestic law impediments.
If it did, it would have acted upon that understanding when Mr. Medellín
sought a stay of his execution to allow Congress a reasonable chance to act
pursuant to the Supreme Court’s settlement of the constitutional allocation of
responsibility for compliance. Instead, the Supreme Court failed to intervene

to stop Texas from proceeding with Mr. Medellín’s execution and thereby
irreparably breaching the Avena Judgment.

3. Congress Failed to Implement Legislation That Could Have
Prevented the Breach.

57. Following the Supreme Court’s decision in Medellin II, several Members of

Congress responded to the call by proposing legislation to give the Avena
Judgment domestic legal effect, but the legislative calendar did not permit
adequate opportunity for Congress to fully consider and enact the bill into law
before Mr. Medellín’s execution date. Mexico understands that Congress
remains seized of the matter and that there remains the possibility that
implementing legislation will be enacted before any other Mexican national

subject to the Avena Judgment is scheduled for execution.

58. “[A] State which has contracted valid international obligations is bound to
make in its legislation such modifications as may be necessary to ensure the
fulfillment of the obligations undertaken.” Exchange of Greek and Turkish
Populations, Advisory Opinion, P.C.I.J., Series B, No. 10, 1925, p. 20.

Mexico is unaware of any efforts by the Federal Executive to urge the passage
of the necessary legislation to give effect to the Avena Judgment.

59. In sum, the words and deeds of the Federal Executive, the Supreme Court and
Congress confirm the existence of a dispute, namely, that the constituent
federal and state organs of the United States neither shared the understanding
of Mexico as to the meaning and scope of the obligation of result nor

considered themselves subject to that obligation.

C. Mexico Is Entitled To Its Requested Interpretation of the Avena
Judgment.

60. Accordingly, Mexico is entitled to an interpretation of paragraph 153(9) of the
Avena Judgment in the terms it has requested. In particular, as set forth below

in its Submissions, Mexico requests an interpretation that the obligation
incumbent upon the United States under paragraph 153(9) of the Avena
Judgment constitutes an obligation of result that binds all the competent

16 organs and all the constituent subdivisions of the United States, including all

branches of government and any official, state or federal, exercising
government authority. Mexico also requests an interpretation that the
obligation of result requires those organs and subdivisions to take all measures
necessary to provide the reparation of review and reconsideration mandated by

the Avena Judgment in paragraph 153(9) and to ensure that no Mexican
national entitled to review and reconsideration under the Avena Judgment is
executed unless and until that review and reconsideration is completed and it

is determined that no prejudice resulted from the violation.

IV. T HEF AILURE OF THEUNITED STATES TOT AKE ALL M EASURESN ECESSARY
TO PREVENT M R. MEDELLÍN S EXECUTION BEFORE H ER ECEIVED REVIEW

AND R ECONSIDERATION CONSTITUTES A BREACH OF THIS COURT S
PROVISIONAL M EASURES O RDER AND THEA VENA JUDGMENT ITSELF.

61. By its Order of 16 July 2008, pursuant to Articles 41 and 48 of the Statute of
the Court and Articles 73 and 74 of the Rules of the Court, this Court directed:

The United States of America shall take all measures
necessary to ensure that Messrs. José Ernesto Medellín
Rojas, César Roberto Fierro Reyna, Rubén Ramírez

Cárdenas, Humberto Leal García, and Roberto Moreno
Ramos are not executed pending judgment on the
Request for interpretation submitted by the United

Mexican States, unless and until these five Mexican
nationals receive review and reconsideration consistent
with paragraphs 138 to 141 of the Court’s Judgment
delivered on 31 March 2004 in the case concerning

Avena and Other Mexican Nationals (Mexico v. United
States of America).

Provisional Measures Order, ¶ 80. The United States breached the obligation

imposed by this Order.

A. The Court Has Jurisdiction to Consider Mexico’s Claim That the United
States Breached the 16 July Order of Provisional Measures.

62. Following this Court’s decision in the LaGrand case, there can be no doubt
that the Court has jurisdiction to consider Mexico’s claim that the United
States breached its obligation to abide by the 16 July Order. In LaGrand, the

Court explicitly affirmed its determination in the Fisheries Jurisdiction case
that “in order to consider [a] dispute in all aspects it may also deal with a
submission that ‘is one based on facts subsequent to the filing of the

5
On 28 August 2008, Mexico sought leave to amend its pleadings to state a claim
based on the violation of this Court’s Order on provisional measures. The Court
granted Mexico’s request on 2 September 2008.

17 Application, but arising directly out of the question which is the subject-matter
of that Application.’” See LaGrand, ¶ 45 (citing Fisheries Jurisdiction
(Federal Republic of Germany v. Iceland) Merits, Judgment, I.C.J. Reports
1974, p. 175, ¶ 72)). On that basis, the Court declared:

Where the Court has jurisdiction to decide a case, it also
has jurisdiction to deal with submissions requesting it to

determine that an order indicating measures which
seeks to preserve the rights of the Parties to this dispute
has not been complied with.

Id. Mexico’s claim of breach here fits squarely within this ancillary
jurisdiction.

B. The Provisional Measures Order Clearly Was Compulsory.

63. After the LaGrand case, there also can be no doubt that this Court’s 16 July
Order was compulsory upon the United States. In LaGrand, the Court firmly
rejected a claim by the United States that provisional measures were not
legally binding, id., ¶ 96, concluding instead that that because such orders fall

within the compulsory language of Article 94(1) of the UN Charter, “orders on
provisional measures under Article 41 have binding effect,” id. ¶ 109.

64. The United States has not challenged the binding force of the 16 July Order.

C. There is No Dispute That Mr. Medellín Did Not Receive the Review and
Reconsideration Mandated by Avena Before He Was Executed.

65. It is undisputed that Mr. Medellín did not receive the review and
reconsideration to which he was entitled under the Avena Judgment. The
United States has never contended otherwise. Although the State of Texas
argued that the state and federal courts that disposed of Mr. Medellín’s Article
36 claim prior to Avena had effectively conducted the review and
reconsideration required by this Court’s Judgment, the United States has

acknowledged that the pre-Avena decisions did not comply with Avena’s
review and reconsideration requirement because the prior review “d[id] not
give full and independent weight to the treaty violation, which is what Avena
requires.” Transcript of Oral Argument, Vol. 1 at 49:8-11, Ex parte Medellin,
223 S.W.3d 315 (Tex. Crim. App. 2006) (No. AP-75,207).

66. No U.S. court has purported to conduct review and reconsideration of Mr.
Medellín’s conviction and sentence since this Court issued its Avena Judgment.
The Texas Court of Criminal Appeals did not even suggest, either in its 2005
or 2008 decisions, that it had already conducted the review and
reconsideration that Avena requires. In her concurring opinion in 2008, Judge
Cochran stated her view that review and reconsideration was likely to lead to a

finding of no prejudice, but she did not contend that the review and
reconsideration required by Avena had already occurred.

1867. Similarly, the United States Supreme Court refused to conduct review and
reconsideration of Mr. Medellín’s conviction and sentence in light of the
Article 36 violation. At oral argument in November 2007, Chief Justice
Roberts recognized that under the Avena Judgment, the courts would be
required to conduct de novo review of the Vienna Convention claims of

Mexican nationals named in the Avena Judgment. The United States again
agreed. See Transcript of Oral Argument at 26-27, Medellin II, available at
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-
984.pdf. And in its March 2008 opinion, the Court expressly declined to
“consider whether Medellin was prejudiced in any way by the violation of his

Vienna Convention rights,” and did not suggest that Mr. Medellín had
previously received a determination as to prejudice in compliance withAvena.
Medellin II, 128 S. Ct. at 1355 n.1.

68. In August 2008, the Supreme Court refused even to hear Mr. Medellín’s
petition for review that was filed in the week before his execution. In a

decision issued on the evening of Mr. Medellín’s execution, the Supreme
Court implied that it was unlikely that a reviewing court would find prejudice,
at least as to the conviction. But the Court did not itself conduct the review
required by Avena. As Justice Breyer observed, “the question before us is
whether the United States will carry out its international legal obligation to

enforce the decision of the ICJ. That decision requires a further hearing to
determine whether a conceded violation of the Vienna Convention (Texas’
failure to inform petitioner of his rights under the Vienna Convention) was or
was not harmless.” Medellin III, 2008 WL 3821478, at *4 (Breyer, J.,
dissenting).

D. The United States Failed to Take All Measures Necessary to Prevent the
Execution of José Medellín.

69. The United States stated unequivocally before the Texas Court of Criminal
Appeals that the domestic proceedings in his case prior to this Court’s

Judgment in Avena could not qualify as review and reconsideration under that

6
Indeed, the only tribunal to have reviewed all of the evidence pertaining to the
Vienna Convention violation in Mr. Medellín’s case in a manner consistent with
the Avena Judgment found that he had been prejudiced. Following written
submissions and oral argument in which the United States fully participated, the

Inter-American Commission on Human Rights issued a preliminary report
concluding that Mr. Medellín had in fact been prejudiced by the Vienna
Convention violation and recommending that he be granted a new trial as a result.
See Medellin et al. v. United States, Case No. 12.644, Inter-Am. C.H.R., Report
No. 45/08, OEA/Ser/L/VIII.132, doc. 21, ¶¶ 128, 132, 160 (July 24, 2008)

(attached as Exhibit B). The Commission also requested that the United States
take precautionary measures to preserve Mr. Medellín’s life pending the
implementation of its recommendations. Id. ¶ 159.

19 Judgment. It has never disavowed that position, which follows from the
prospective nature of the Judgment itself. See Avena, ¶ 153(9).

70. Mr. Medellín was executed on 5 August. Prior to his execution, no court
purported to conduct the review and reconsideration required by Avena. See

supra, Part IV.C. On those undisputed facts alone, this Court must conclude
that the United States breached the provisional measures order by failing to
take all steps necessary to prevent his execution without having provided
review and reconsideration consistent with the terms of the Avena Judgment.

71. While it should not matter to the basic holding of breach, the failure is

attributable to the refusal to act of numerous responsible and competent actors
within the United States.

1. The U.S. Supreme Court Failed to Exercise Its Authority to Stay
the Execution.

72. The U.S. Supreme Court had the constitutional authority to issue a stay

pending congressional consideration of implementing legislati7n, but it
declined to exercise its authority to do so. See Medellin III. It thereby failed
to take all measures necessary to prevent the execution. Indeed, not only did
the Supreme Court refuse to issue a stay pending congressional action, but it
refused to issue a stay even to hear the views of the Federal Executive as to the

international obligations involved. See supra, ¶ 27.

73. Among the failures cited by this Court in its determination that the United
States breached the provisional measures order in LaGrand was the failure of
the Supreme Court to grant a stay of execution to consider, after briefing from
all interested parties, the jurisdictional and legal issues presented by Germany.

LaGrand, ¶¶ 113. The same observation applies with equal force here.

2. The Federal Executive Failed to Recommend a Stay of Execution
and the Governor of Texas Failed To Issue a Reprieve.

74. The Court in LaGrand also cited the failure of the Federal Executive to
encourage the U.S. Supreme Court and the Governor of Arizona to stay Walter

LaGrand’s execution in light of provisional measures, and the failure of the
Governor of Arizona to issue a reprieve. LaGrand, ¶¶ 112, 114. Here, the
Federal Executive was required to raise this Court’s 16 July Order and Avena
Judgment to the domestic courts and state administrative authorities seized of
Mr. Medellín’s request for a stay of execution. As noted above, the Executive

here failed entirely to intervene in the proceedings in both state and federal

7
Indeed, as noted above, four dissenting justices of the U.S. Supreme Court
explicitly lamented the failure of the majority to delay the execution long enough
to solicit the views of the Federal Executive. See supra, ¶ 27.

20 court. Its failure to do so thus constitutes a breach of the Order and the Avena
Judgment.

75. To the best of Mexico’s knowledge, the Executive also failed to ask the

Governor of Texas to exercise his authority to grant a thirty-day reprieve. See
supra, Part II.B.3. The United States also should have appealed to the Texas
Board of Pardons and Paroles, which had authority as part of the clemency
process to recommend that the Governor commute Mr. Medellín’s death
sentence or grant a reprieve from execution. EXAS CONST . art. IV, § 11; 37

T EX. ADMIN . CODE §§ 143.42-43 (reprieve), 143.57 (commutation) (2006).
Without such a recommendation, the Governor’s unilateral power to grant a
reprieve was limited to thirty days, but on the recommendation of the Board
the Governor could have stayed Mr. Medellín’s execution long enough to
allow Congress a reasonable opportunity to enact implementing legislation.

SeeT EX . CODE C RIM. PROC . art. 48.01. Mr. Medellín asked the Board to
recommend that the Governor grant a reprieve of 240 days. See Petition for
Recommendation of Executive Clemency and Petition for Reprieve from
Execution on Behalf of José Ernesto Medellín at 6, 35, Texas Board of

Pardons and Paroles (July 14, 2008).

76. The United States has provided this Court with a copy of a letter sent by its
Agent in these proceedings to the Presiding Officer of the Board of Pardons
and Paroles. Letter from John B. Bellinger III, Legal Adviser to the Secretary
of State, to Rissie Owens, Presiding Officer of the Texas Board of Pardons

and Paroles (July 30, 2008) (attached to Written Observations of the United
States as Exhibit 4). Far from urging compliance with the 16 July Order, the
letter expressly declined to take a position on whether Mr. Medellín’s sentence
should be commuted or on any other aspect of his clemency petition, including
his request for a reprieve from execution. Id. at 1.

77. Finally, as noted, the Governor of Texas also had unilateral authority to issue a
thirty-day reprieve from execution, but declined to do so. See supra, ¶ 75.
Although in practice a thirty-day reprieve would not have guaranteed
Congress a reasonable opportunity to act, the Governor was required to take

all necessary steps to prevent the execution.

E. Mexico Is Entitled To A Declaration of Breach.

78. In its oral presentation on Mexico’s request for provisional measures, the
United States twice acknowledged that it would constitute a breach of the

Avena Judgment if Mr. Medellín were to be executed without having received
the review and reconsideration ordered therein. See Transcript of Public
Sitting, 20 June 2008, 4:30 p.m., ¶¶ 27, 31. The Court noted the statement of
the United States in its 16 July Order: “Whereas the Court further notes that
the United States has recognized that, were any of Mexican nationals names in

the request for the indication of provisional measures to be executed without
the necessary review and reconsideration required under the Avena Judgment,

21 that would constitute a violation of United States obligations under
international law; whereas, in particular, the Agent of the United States
declared before the Court that ‘[t]o carry out Mr. Medellin’s sentence without

affording him the necessary review and reconsideration obviously would be
inconsistent with the Avena Judgment.” Provisional Measures Order, ¶ 76. It
follows from the terms of the Order on provisional measures that Mr.
Medellín’s execution also constitutes a breach of that Order.

79. The United States does not appear to contest this point. Rather, the United
States readily admits, as it must, that it is liable as a matter of international law
for the wrongful acts of all state and federal officials. See Written
Observations of the United States, ¶¶ 55, 58; Draft Articles on Responsibility

of States for Internationally Wrongful Acts, art. 4, adopted by the International
Law Commission at its Fifty-third session (2001), Official Records of the
General Assembly, Fifty-sixth Session, Supplement No. 10 (A/56/10). In light
of the foregoing, Mexico is entitled to a declaration that the United States
breached the Order of 16 July 2008 and the Avena Judgment by executing Mr.

Medellín without having provided review and reconsideration consistent with
the terms of the Avena Judgment.

V. M EXICO ISE NTITLED TO G UARANTEES OF NON -R EPETITION .

80. In these circumstances, Mexico is entitled to guarantees of non-repetition by
the United States. Article 30 of the International Law Commission Articles on
State Responsibility provides that States are obliged “to offer appropriate
assurances and guarantees of non-repetition, if circumstances so require.”
Guarantees are a well-established remedy under international law, as they aid

“the restoration and repair of the legal relationship affected by the breach.”
See Commentary to Draft Articles on Responsibility for Internationally
Wrongful Acts, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (Part 2), [2001] Y.B.
Int’l L. Comm’n at 88 (Commentary to Article 30, ¶ 1). They also “serve a

preventive function” to ensure that future violations of the same type will not
occur again. Id.; see also Crawford, Peel & Olleson, The ILC’s Articles on
Responsibility of States for Internationally Wrongful Acts: Completion of the
Second Reading, 12 E.J.I.L. 963, 987 (2001) (“[G]uarantees are likely to be

appropriate only where there is a real risk of repetition causing injury to the
requesting state or others on whose behalf it is acting.”).

81. This Court has on several occasions ordered measures of relief that establish
prospective obligations to avoid further unlawful conduct. For example, in the

8
See, e.g., Loayza-Tamayo v. Peru, Merits, Reparations and Costs, Judgment of
November 27, 1998, Inter-Am. Ct. H.R., Series C No. 42, ¶ 85 (“Reparations is a
generic term that covers the various ways a State may make amends for the
international responsibility it has incurred (restitutio in integrum, payment of

compensation, satisfaction, guarantees of non-repetitions among others).”).

22 case concerning United States Diplomatic and Consular Staff in Tehran, the
Court, having found Iran’s detention of U.S. diplomatic and consular staff in
Tehran to constitute a violation of its international obligations to the United
States, not only ordered Iran to release the detained individuals but also
granted the prospective relief sought by the United States and ordered Iran to

refrain from holding any diplomatic or consular staff member captive in Iran
for purposes of future judicial proceedings. See United States Diplomatic and
Consular Staff in Tehran, Judgment, I.C.J. Reports 1980, p. 3, ¶ 95(3)-(4). 9

82. The purposes served by guarantees of non-repetition are squarely implicated

here, where the obligations set forth in the Avena Judgment—to which the
Order on provisional measures was addressed—will continue to bind the
United States as a matter of international law, and yet “there is a real risk of
repetition causing injury” to Mexico and its nationals.

83. Concrete and compelling circumstances demonstrate the need for the

guarantees sought here. To be clear, the guarantees that Mexico seeks here are
not adequately addressed by the measures that the United States has taken to
promote compliance with its obligations under Article 36 of the Vienna
Convention. Cf. LaGrand (Germany v. United States of America), Judgment,
I.C.J. Reports 2001, p. 466, ¶¶ 123-124; Avena, ¶¶ 149, 153(10). Nor are they

satisfied by the prospective obligation reflected in the LaGrand and Avena
decisions to provide review and reconsideration to individuals nonetheless
deprived of their Article 36 rights. See LaGrand, ¶¶ 125, 127; Avena, ¶¶ 150,
153(11). Here, Mexico seeks guarantees of non-repetition specifically to
ensure that no other Mexican national already adjudged by this Court to be

entitled to review and reconsideration is executed without having received that
remedy.

84. Having failed to take all measures necessary to prevent the execution of Mr.
Medellín without having provided review and reconsideration, the United
States has offered no assurance that it will take the requisite action to prevent

another such breach. There is, moreover, every reason to believe that the
courts of Texas and the United States would permit further unlawful
executions to proceed absent implementing legislation, and yet the Executive,

9
Similarly, in the case concerning Military and Paramilitary Activities in and
Against Nicaragua, the Court found that the United States had breached its
obligation not to violate Nicaragua’s sovereignty and therefore was “under a duty
immediately to cease and to refrain from all such acts as may constitute breaches

of the foregoing legal obligations.” Military and Paramilitary Activities in and
Against Nicaragua, (Nicaragua v. United States of America), Merits, Judgment,
I.C.J. Report 1986, p. 14, ¶ 292(12) (emphasis added).

23 despite its claim to agree with Mexico in these proceedings, has not even tak10
the step of pronouncing its support for the enactment of a new federal law.

85. Accordingly, Mexico is entitled to an order requiring the United States
Executive to guarantee that no other Mexican national entitled to review and

reconsideration under the Avena Judgment is executed unless and until that
review and reconsideration is completed and it is determined that no prejudice
resulted from the violation.

VI. SUBMISSIONS

86. Based on the foregoing, the Government of Mexico asks the Court to adjudge

and declare as follows:

(a) That the correct interpretation of the obligation incumbent upon the
United States under paragraph 153(9) of the Avena Judgment is that it
is an obligation of result as it is clearly stated in the Judgment by the
indication that the United States must provide “review and

reconsideration of the convictions and sentences;”

and that, pursuant to the interpretation of the foregoing obligation of
result,

(1) the United States, acting through all its competent organs and
all its constituent subdivisions, including all branches of

government and any official, state or federal, exercising
government authority, must take all measures necessary to
provide the reparation of review and reconsideration mandated
by the Avena Judgment in paragraph 153(9); and

(2) the United States, acting through all its competent organs and
all its constituent subdivisions, including all branches of

10 The United States characterized Governor Perry’s letter stating that “the State of

Texas will ask the reviewing court to review the claim on the merits,” as an
“important commitment” on the part of the Governor. Written Observations of
the United States, ¶ 13. The United States failed to observe that Governor Perry
did not agree to support review and reconsideration as mandated by this Court in
Avena. Instead, Texas opposed Mr. Medellín’s request for review and

reconsideration at every turn. Texas claimed that state and federal courts prior to
Avena had concluded that Mr. Medellín was not prejudiced by the Vienna
Convention violation, and took the position that this “review” satisfied this
Court’s mandate in Avena. See, e.g., Brief for Respondent at 32-33, Ex parte
Medellin, 223 S.W.3d 315 (Tex. Crim. App. 2006) (No. AP-75,027); Brief in

Opposition at 12-17, Medellin III; Brief for Respondent at 49, 50, Medellin II.
The United States agrees with Mexico that these pre-Avena decisions did not
constitute sufficient review and reconsideration. See infra ¶ 65.

24 government and any official, state or federal, exercising
government authority, must take all measures necessary to
ensure that no Mexican national entitled to review and
reconsideration under the Avena Judgment is executed unless
and until that review and reconsideration is completed and it is
determined that no prejudice resulted from the violation;

(b) That the United States breached the Court’s Order of 16 July 2008 and
the Avena Judgment by executing José Ernesto Medellín Rojas without
having provided him review and reconsideration consistent with the
terms of the Avena Judgment; and

(c) That the United States is required to guarantee that no other Mexican

national entitled to review and reconsideration under the Avena
Judgment is executed unless and until that review and reconsideration
is completed and it is determined that no prejudice resulted from the
violation.

* * *

I have the honor to reassure the Court of my highest esteem and consideration.

17 September 2008

______________________________________________
Ambassador Jorge LOMÓNACO TONDA

Ambassador of Mexico to the Kingdom of the Netherlands
ThHeagueN,etherlands

25 I

110TH CONGRESS
2D SESSION H. R. 6481

To create a civil action to provide judicial remedies to carry out certain
treaty obligations of the United States under the Vienna Convention

on Consular Relations and the Optional Protocol to the Vienna Conven-
tion on Consular Relations.

IN THE HOUSE OF REPRESENTATIVES

JULY 14, 2008

Mr. BERMAN (for himself and MsOEZLOFGREN of California) introduced
the following bill; which was referred to the Committee on the Judiciary

A BILL

To create a civil action to provide judicial remedies to carry

out certain treaty obligations of the United States under

the Vienna Convention on Consular Relations and the
Optional Protocol to the Vienna Convention on Consular

Relations.

1 Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Avena Case Implemen-

5 tation Act of 2008’’.

smartinez on PROD1PC64 with BILLS 0000Frm 000Fmt 66Sfmt 62E:\BILLS\H6H6481H 2

1 SEC. 2. JUDICIAL REMEDY.

2 (a) CIVIL A CTION .—Any person whose rights are in-

3 fringed by a violation by any nonforeign governmental au-

4 thority of article 36 of the Vienna Convention on Consular

5 Relations may in a civil action obtain appropriate relief.

6 (b) NATURE OF RELIEF .—Appropriate relief for the

7 purposes of this section means—

8 (1) any declaratory or equitable relief necessary

9 to secure the rights; and

10 (2) in any case where the plaintiff is convicted

11 of a criminal offense where the violation occurs dur-

12 ing and in relation to the investigation or prosecu-

13 tion of that offense, any relief required to remedy

14 the harm done by the violation, including the vitia-

15 tion of the conviction or sentence where appropriate.

16 (c) APPLICATION .—This Act applies with respect to

17 violations occurring before, on, or after the date of the

18 enactment of this Act.

Æ

•HR 6481 IH
smartinez on PROD1PC64 with BILLS 000Frm 000Fmt 66Sfmt 6E:\BILLS\H6H6481H--- S.W.3d ---- Page 1
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

Ex parte Medellin with the well-settled Texas contemporaneous-
Only the Westlaw citation is currently available. objection rule at trial; and (2) had no individually
enforceable right to raise a claim, in a state criminal
trial, regarding the Vienna Convention's consular
NOTICE: THIS OPINION HAS NOT BEEN access provisions. We adopted the trial court's
RELEASED FOR PUBLICATION IN THE
PERMANENT LAW REPORTS. UNTIL findings of fact and conclusions of law and denied
RELEASED, IT IS SUBJECT TO REVISION OR habeas relief. Ex parte Medellin, No. WR-50,191-01
WITHDRAWAL. (Tex Crim.App. Oct. 3, 2001)(not designated for
publication). Applicant then filed the same claim in
federal district court and was ultimately denied relief.
Court of Criminal Appeals ofFN1xas. Medellin v. Cockrell, Civ. No. H-01-4078 (S.D.Tex.
Ex parte José Ernesto MEDELLÍN, Applicant. April 17, 2003).
No. WR-50191-03.

July 31, 2008. On March 31, 2004, the International Court of Justice
(ICJ) issued a decision in Case Concerning Avena
and Other Mexican Nationals (Avena), 2004 I.C.J.
On Application for Writ of Habeas Corpus, Motion No. 128 (March 31, 2004). The ICJ held that (1) the
for Leave to File an Original Writ of Habeas Corpus,
and Motion for Stay of Execution from Cause No. Vienna Convention guaranteed individually
675430, In the 339th District Court, Harris County. enforceable rights; (2) the United States must
“provide, by means of its own choosing, review and
reconsideration of the convictions and sentences of
Morris Moon, for José Ernesto Medellín. the [specified] Mexican nationals”; and (3) the
United States must determine whether the violations
ORDER “caused actual prejudice” to those defendants,

without allowing American procedural default rules
PER CURIAM. or laws to bar such review. Id. at 121-22, 153.In
*1 We have before us a subsequent application for response to the opinion, President Bush issued a
writ of habeas corpus filed pursuant to the provisions memorandum in which he stated that the United
of Texas Code of Criminal Procedure Article 11.071, States would discharge its obligations under the
Avena judgment by having State courts give effect to
§ 5, a motion in the alternative for leave to file the
application as an original writ of habeas corpus, and a the ICJ decision in accordance with general
motion for stay of execution. principles of comity. Arguing that the ICJ opinion
and the presidential memo were new legal and factual
On September 16, 1994, a jury found applicant guilty bases for his Vienna Conv ention claim, applicant
filed a subsequent application for writ of habeas
of the offense of capital murder. The jury answered corpus with the trial co urt. Reviewing the claim
the special issues submitted pursuant to Texas Code under Article 11.071, § 5 , this Court filed and set
of Criminal Procedure Article 37.071 , and the trial
court, accordingly, set applicant's punishment at applicant's case and ordered briefing. Ex parte
death. This Court affirmed applicant's conviction and Medellin, 206 S.W.3d 584 (Tex.Crim.App.2005) .
sentence on direct appeal. Medellin v. State, No. AP- After briefing, argument, and an exhaustive analysis,
71,997 (Tex.Crim.App. Mar. 19, 1997) (not this Court determined that neither the Avena decision
nor the presidential memorandum constituted new
designated for publication). Applicant timely filed in legal or factual bases and dismissed the application.
the convicting court his initial post-conviction Ex parte Medellin, 223 S.W.3d 315, 352
application for writ of habeas corpus in which he
raised a claim alleging the violation of his rights (Tex.Crim.App.2006).
under Article 36 of the Vienna Convention. The
convicting court recommended that we deny this *2 On this, his second subsequent application for writ
claim because applicant: (1) had failed to comply of habeas corpus, and in his motion for a stay of

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 2
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

execution, applicant again argues that new Court of Justice (ICJ) seek ing clarification of the
developments require us to provide him with judicial Avena decision, FN2and that the ICJ has requested the

review and reconsideraFN2n of his Vienna Convention United States to take precautionary measures ( i.e.,
claim under Avena. Applicant argues that these refrain from executing him) until it can render a
new developments consist of: (1) the United States decision. Second, he points to a determination by the
Supreme Court's decision in Medellin v. Texas, 552 Inter-American Commission on Human Rights
U.S. ---- (2008), affirming and clarifying this Court's (IACHR), an international tribunal that is an arm of
opinion in applicant's case; (2) the fact that a bill has the Organization of American States, that he was in

been introduced in the United States House of fact prejudiced by tFN3violation of his Vienna
Representatives which, if passed into law, would Convention rights. Third, he argues that it would
grant applicant a right to the judicial process required violate due process to ex ecute him now because 1)
by Avena; (3) the indication by a Texas Senator that legislation is pending in Congress that would
he will introduce similar legislation in the Texas effectively make the Avena judgment binding on

Legislature in the 2009 sess ion; and (4) the fact that domestic courts in the United States, and 2) a state
the Inter-American Commission on Human Rights, senator has indicated he will introduce a similar bill
allegedly the “only body to have reviewed all of the in the next state legislature. I agree that none of these
evidence pertaining to [applicant's] Vienna circumstances justifies this Court in entertaining a
Convention violation under the standard required by subsequent writ application under Article 11.071,
the ICJ,” on July 24, 2008, issued its preliminary Section 5 .FN4 For the reasons about to be given, I

findings concluding that applicant was prejudiced by believe this Court's hands are tied. But that does not
the violation of his Vienna Convention rights. mean that the Executive Branch cannot act.
Application p. 2.
I. International Court of Justice

We have reviewed applicant's second subsequent
application and find that it does not meet the dictates *3 In his first subsequent writ application, the
of Article 11.071, § 5 , and should be dismissed. Art. applicant argued that , under the Supremacy
11.071, § 5(a) . Applicant's motion in the alternative Clause, FN5the Avena decision constituted binding
for leave to file the application as an original writ of federal law that trumped the abuse-of-the-writ
habeas corpus is denied as is his motion for stay of
provisions of Article 11.071, Section 5 . In our
execution. opinion in Ex parte Medellin, we expressly rejected
that argument. FN6Alternatively, the applicant argued
IT IS SO ORDERED THIS THE 31ST DAY OF that the Avena decision constituted new law and/or
JULY, 2008. new facts that would justify a subsequent writ

application under Article 11.071, Section 5 FN7 . We
PRICE, J., filed a concurring statement in which rejected that argument in Medellin as well. Having
COCHRAN and HOLCOMB, JJ., joined, except for rejected these arguments, we cannot very well hold
Part V; COCHRAN, J., file d a concurring statement that a request for precautionary measures pending a
in which HOLCOMB, J., joined; MEYERS, J., filed new proceeding that has been instituted in the ICJ
that would merely clarify the holding of Avena either
a dissenting statement.
trumps, or, alternatively, falls under the ambit of,
CONCURRING STATEMENT Article 11.071, Section 5. The United States Supreme
Court ratified our reliance upon the statutory abuse-
of-the-writ doctrine, notwithstanding Avena, in its
PRICE, J., filed a concurring statement in which certiori review of our decision. FN8We must therefore
HOLCOMB and COCHRAN, JJ., joined except as to heed the current legislative prohibition against
Part V.
The applicant alleges three circumstances he entertaining a subsequent writ under these
circumstances-unless and until Congress should act
contends should qualify him to re-raise his Vienna in such a way that we should be bound by the Avena
Convention claim in yet another subsequent post- judgment, notwithstanding contrary state law.
conviction application for writ of habeas
corpus.FN1First, he points to the fact that Mexico has
initiated another proceeding in the International II. Inter-American Commission on Human Rights

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 3
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

simply fails to state facts that would entitle him to
habeas corpus relief. Any claim based upon
The applicant also alleges that the IACHR's decision
that the violation of his Vienna Convention rights legislation that might be introduced at the next
was prejudicial and amounted to a violation of the legislative session in Texas suffers a similar fate.
due process guarantees embodied in the 1948
Declaration of the Rights and Duties of Man, IV. Original Application for Writ of Habeas

constitutes both new law and new facts for purposes Corpus
of Article 11.071, Section 5. But in Medellin, we held
that the Avena decision constituted law, not fact, and *4 The applicant urges us to by-pass the abuse-of-
the same must surely be said of any decision of the the-writ provisions of Article 11.071, Section 5 , by
IACHR. FN9With respect to new law, we held in simply treating his application as an invocation of our
Medellin that, to be cognizable under Article 11.071,
original writ jurisdiction. This we may not do. It is
Section 5, it must emanate from “a final decision of indisputable that the applicant is challenging the
the United States Supreme Co urt, a court of appeals validity of his conviction and death sentence. We
of the United States, or a court of appellate have made it clear that under such circumstances we
jurisdiction of this state.”FN10International tribunals are bound to entertain any post-conviction writ of
are not included within this statutory ambit. In any
event, it is not clear-and it has not been pled here-that habeas corpus only under the purview of the
procedures set out in Ar ticle 11.071-including the
a decision of the IACHR is binding on domestic abuse-of-the-writ provisions in Article 11.071,
courts in the same way that it has been arguable that a Section 5.FN14
decision of the ICJ with respect to the Vienna
Convention is binding under the Supremacy Clause
by virtue of the Optional Protocol. FN11Thus, even if V. Executive Clemency

the IACHR judgment somehow constituted a new For all of the above reasons, this Court is not at
fact or law for purposes of Article 11.071, Section 5, liberty to stop the applicant's execution. But the
notwithstanding what we said in Medellin, it is still
not clear that by invoking it the applicant has Governor is. The applicant informs us that he has
presented anything that, even if true, would entitle requested that the Board of Pardons and Paroles
him to relief. recommend to the Governor that he grant the
applicant a 240-day reprieve so that there will be time
for the proposed federal legislation to be considered
III. Pending Legislation in Congress. FN15Moreover, the Governor himself may

grant a 30-day reprieve even absent FN16
The applicant alleges that on July 14, 2008, a bill was recommendation from the Board. It would be an
introduced in the House of Representatives, entitled embarrassment and a shame to the people of Texas
the “Avena Case Implementation Act of 2008,” and the rest of the country (albeit not presently
which would expressly provide for judicial remedies unconstitutional) if we were to execute the applicant
to carry out the treaty obligations that Avena
construed the Vienna Convention to impose. FN12The despite our failure to honor the international
obligation embodied in the Avena judgment when
applicant contends that to execute him while such legislation may well be passed in the near future by
legislation is pending would violate federal due which that obligation would become, not merely
process, given the fact that nobody disputes that the precatory, but legally (and retroactively) binding
Avena decision, once implemented by Congress, upon us. The Executive Br anch most appropriately
would require domestic courts to undergo a review
exercises its clemency auth ority when the judicial
and reconsideration of his convFN13on and sentence branch finds itself powerle ss to rectify an obvious
before he could be executed. This is entirely too and manifest injustice. This, I think, is such a
speculative to support a due process claim. The situation, and I would urge the Board and the
applicant has no expectation that the proposed Governor to act.
legislation will be enacted. Until such a statute is COCHRAN, J., filed a concurring statement.
passed, the Avena decision is not binding; and if
HOLCOMB, J., joins.
Avena is not binding, the applicant cannot predicate a I join the Court's Order denying applicant's motion
due process claim upon it. Again, the applicant for leave to file an original application and motion for

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 4
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

a stay of execution and dismissing his third timely manner.
application for a writ of ha beas corpus. Even if our

law allowed for consideration of this third (and In Texas, we have a contemporaneous objection rule
repetitious) application, which it does not, applicant which requires all litigants to make a timely request,
is not entitled to any relief on the merits of his claim claim, or objection or forfeit the right to raise that
under Texas or United States law. request, claim, or objection after trial. This same rule

applies in every jurisdiction in America. As the
First, let us be clear about applicant's claim. Born in Supreme Court explained over thirty years ago, the
Mexico, applicant was brought to the United States contemporaneous objection rule serves important
when he was three years old and, at the time he was judicial interests in American criminal cases and
arrested, had lived in this country for fifteen of his deserves respect throughout the land.
eighteen years. He spoke fluent English, but he never

obtained, nor apparently ever sought, U.S. A contemporaneous objection enables the record to
citizenship. So, at the time of his arrest and trial, he be made with respect to the constitutional claim
was legally a Mexican citizen. His claim is that no when the recollections of witnesses are freshest,
one informed him of his right to contact the Mexican not years later in a federal habeas proceeding. It
consulate. This is true. It is also true that he was
never denied access to the Mexican consulate. The enables the judge who observed the demeanor of
those witnesses to make the factual determinations
problem is that he apparently never told any law necessary for properly deciding the federal
enforcement or judicial official that he was a constitutional question.FN4
Mexican citizen until some four years after his
conviction. Applicant never informed the arresting
officers that he was a Mexican citizen. FN1He makes Furthermore, a contemporaneous objection permits
the trial judge to remedy potential error before it
no claim that he informed any magistrate that he was occurs. FN5In the present case, for example, had
a Mexican citizen. He points to no evidence that he applicant informed any lega l officer that he was a
informed the trial judge before or during his trial that Mexican national and wanted to consult with his
he was a Mexican citizen. FN2We do not know what
the arresting officers, the magistrate, or the trial judge consulate, any such official could have (and
would have done had any of them been informed that presumably would have) willingly complied with the
requirements of the Vienna Convention. If applicant
applicant was a citizen of Mexico. Perhaps they had delayed telling anyone of his Mexican citizenship
would have informed him of his right to contact his until trial, the trial judge could have immediately
consulate for assistance. While Texas authorities informed the Mexican consulate, allowed applicant to
clearly failed in their duty to inform this foreign
national of his rights under the Vienna Convention, do so himself, or perhaps given him a continuance to
this foreign national equally failed in his duty to seek assistance from his consulate.

inform those authorities that he was a Mexican As the Supreme Court has explained, the failure to
citizen. Although one would like to think that all
Texas public officials ar e clairvoyant about the abide by the contemporaneous objection rule “may
nationality of all who appear before them, they are encourage ‘sandbagging’ on the part of defense
not required to be, nor, when there is no reason to lawyers, who may take thei r chances on a verdict of
not guilty in a state trial court with the intent to raise
believe that a defendant is anything but a U.S. their constitutional claims in a federal habeas court if
citizen, should they be. their initial gamble does not pay off.” FN6Finally, it is

*5 As this Court explained at considerable length in the criminal trial itself that is “the main event”; it is
applicant's last application for a writ of habeas not “a tryout on the road” to moreFN7an a decade of
FN3 appellate review and re-review.
corpus, Texas law does not permit a defendant to
raise a claim four years afte r his trial that he was not
notified before or during his trial of his rights under The failure of the federal habeas courts generally to
the Vienna Convention, the U.S. Constitution, the require compliance with a contemporaneous-
Texas Constitution, or any other law. This claim was objection rule tends to detract from the perception
of the trial of a criminal case in state court as a
procedurally defaulted by the failure to raise it in a decisive and portentous event. A defendant has

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 5
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

been accused of a serious crime, and this is the greatest respect to, and admiration for, the
time and place set for him to be tried by a jury of International Court of Justice (ICJ) and its judgments,

his peers and found either guilty or not guilty by we, like the Supreme Cour t, cannot trample on our
that jury. To the greatest extent possible all issues own fundamental laws in deference to its judgment.
which bear on this charge should be determined in We would give even the Devil the benefit of our
this proceeding: the accuse d is in the court-room, American law, but if we cut down our laws to suit
the jury is in the box, the judge is on the bench, and another sovereign that operates under a different
the witnesses, having been subpoenaed and duly system of justice, we could not stand upright in the
FN11
sworn, await their turn to testify. Society's lawless winds that would then blow. If we violate
resources have been concentrated at that time and our state and federal procedural rules for this
place in order to decide, within the limits of human particular applicant, we should violate them for all
fallibility, the question of guilt or innocence of one American defendants as well. And then we would
of its citizens. Any procedural rule which have no rules and no law at all.

encourages the result that those proceedings be as
free of error as possible is thoroughly desirable, But it seems that the ICJ intended to do just that: to
and the contemporaneous-objection rule surely impose its sense of Napoleonic Code inquisitorial
falls within this classification.8 justice without regard for other sovereigns' well-
established laws and procedures. So let me consider

*6 Texas courts have long followed the Supreme this case from its perspective and review the merits of
Court's reasoning concerning the importance of the applicant's claim in accord with the ICJ's Avena
contemporaneous objection rule in the fair, effective, judgment. FN12
and efficient operation of its state courts. FN9Indeed,
the contemporaneous objection rule has been a
Applicant was arrested for, charged with, and
bulwark of the Anglo-American Common Law for convicted of an extraordin arily gruesome rape and
centuries. It is based upon our fundamental concept murder of two teen-aged girls in Houston, Texas, in
of an adversarial system of justice. The International 1993. The two girls, 14-year-old Jennifer Lee Ertman
Court of Justice, however, is more familiar with the and 16-year-old Elizabeth Pena, were friends and
Napoleonic Code and an inquisitorial system of classmates at Waltrip High School. They were simply
criminal justice. That syst em is very different from
walking home one June evening when they were
our own, and has its own virtues and vices. It does attacked by applicant and several of his gang-
not rely upon our adversarial principles in which a members who repeatedly raped both girls, then
jury listens to opposing lawyers presenting all of the dragged them into the woods to kill them and hide
relevant, conflicting, an d competing evidence and their bodies. Applicant helped to strangle at least one
witnesses to the factfinder at one time and in one
place with the judge ruling on all legal questions and of the girls with her own shoelace. He later
complained to a friend that he had a hard time getting
claims at that time. In our Anglo-American system Jennifer Ertman to die and had to step on her throat to
the trial is the main event. The European criminal finish her off. The girls' decomposed bodies were
justice system does not depend upon our finely-tuned discovered four days later.
jury trial procedures, and thus it need not be
concerned about the importance of our
*7 Applicant bragged to his buddies that both of the
contemporaneous objection rule or that of procedural girls were virgins until he and his cohorts raped them.
default. But those rules are essential to our American He confessed to police officers after being properly
justice system. advised of his rights to counsel under Miranda. FN13He

Applicant claims that the Avena judgment necessarily explained, in great detail, how his group was
involved in a gang-initiation rite until the two girls
trumps all Texas and federal procedural rules because innocently wandered past them on their way home.
it ordered that the convictions of fifty-four foreign His written confession displayed a callous, cruel, and
nationals be “reviewed” regardless of bedrock cavalier attitude toward the two girls that he had
American procedural default rules. The Supreme raped and helped to murder. Surely no juror or judge
Court held otherwise in its recent decision in
FN10 will ever forget his words or his sordid deeds.
Medellin v. Texas. Although we accord the

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 6
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

Applicant and four of his fellow gang members were later.”Then, simultaneous ly abandoned and abused
convicted of these murders and all were sentenced to by his parents, he was further exposed to “bad
death.FN14One of them, Sean Derrick O'Brien, has influences” in middle school . He claims that, “[a]s

been executed. The death sentences for two of the recent immigrants, his pare nts lacked the skills to
gang members were later commuted to life in prison understand and address the pressures [applicant]
under Simmons v. Roper, because they were faced at school.”So he developed behavioral and
seventeen at the time of the murders. FN15Applicant emotional problems as well as an alcohol abuse
and Peter Cantu both remain in prison awaiting problem, and he dropped out of school. And those
execution. “profound experiences” explain why he and his five

fellow gang-members raped, robbed, and killed two
Applicant's argument on the merits of his consular teen-aged girls who just happened to walk by during
notification claim is as follows: their gang initiation. Applicant asserts, “On the
record before this Court, the result is not fairly in
doubt: were it not for the violation of the Vienna
• If I had been told before trial that I could notify Convention, [applicant] would not be on death row.”
the Mexican consulate that I had been arrested for a
double murder and rape, I would have done so;
*8 This argument might have some plausible
intellectual appeal had just one, any one, of
• If I had notified the Mexican consulate before applicant's cohorts not been sentenced to death
trial that I wanted its help, it would have given me despite the best efforts of their respective attorneys
“substantial assistance”;
during their individual trials. Applicant may or may
• The “substantial assist ance” that the Mexican not have been the ringleader of this gang, but he was,
at a minimum, fully and gleefully involved in the
consulate would have given me would be that of brutal rapes and murders of these two young
providing me with a top-notch lawyer instead of girls.N16The evidence at trial showed that he bragged
the lawyer that the trial court appointed to about his gory and sadistic exploits to his friends.
represent me;
The State also put on cons iderable evidence showing
his prior violence and post-offense violence in jail.
• The lawyer that did represent me at trial had been The jurors heard a great deal of evidence about
suspended from the prac tice of law for ethics applicant's extensive gang-related illegal activities
violations in a different case; before this crime and how he was expelled from
school because of gang activities. No Officer Krupke

• If a different, better lawyer, paid by the Mexican would ever conclude that applicant's crimes and those
Consulate, had represented me at trial, I would not of his cohorts were just tFN17nfortunate product of a
have been sentenced to death for the rape-murder sad and sorry upbringing.
of these two girls, even though my four cohorts
were all sentenced to death in their trials, Applicant complains that his trial attorney was
represented by their lawyers.
incompetent. These claims have been reviewed by
the trial court, by this Court, by a federal district
Applicant argues that a lawyer chosen by the court, and by the Fifth Circuit Court of
Mexican consulate would have introduced sufficient Appeals. FN18All of these courts (a total of fourteen
background, character, and “life history” evidence individual judges) have rejected those complaints as
that the jury would necessarily have sentenced him to being totally without merit. This claim could have

life in prison instead of death. He argues that a better been, but was not, submitted to the U.S. Supreme
pretrial investigation by a better lawyer would have Court. Further review by any lower court would be
shown that applicant grew up in an environment of redundant. It is highly improbable that any lawyer in
abject poverty and violence. Hestatesthathewas the State of Texas, the Un ited States, the European
abandoned by his parents at the age of four and left to Union, or any other jurisdiction could have saved
live with an elderly relative. He also states that he applicant (or any of his cohorts) from a sentence of
became “exposed to serious violence shortly after death for the heinous, horrific and mindless offenses

rejoining his parents in Houston five years that they committed duri ng one summer evening in

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 7
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

1993 in the State of Texas. FN2. Applicant does not phrase his claims
specifically in terms of the Vienna
In sum, I wholeheartedly agree with Justice Stevens's Convention. However, the Vienna
Convention and the Avena judgment are the
conclusion that “[t]he cost to Texas of complying
with Avena would be minimal, particularly given the underlying bases of the claims raised.
remote likelihood that the violation of the Vienna
Convention actually prejudiced José Ernesto FN1.Vienna Convention on Consular
Medellin.” FN19I would go further: there is no Relations, Apr. 24, 1963, 21 U.S.T. 77,
likelihood at all that the unknowing and inadvertent T.I.A.S. No. 6820.

violation of the Vienna Convention actually
prejudiced Medellin. This was a truly despicable FN2.Case Concerning Avena and Other
crime committed by five truly brutal young men who Mexican National s (Mex.v.U.S.), 2004
were deadly dangerous to anyone who might find I..C.J. No. 128 (Judgment of Mar. 31).
themselves near them. All five were sentenced to
death by separate juries after hearing all of the
evidence in each of their individual trials. No matter FN3.Medellin v. United States, Case 12.644,
Inter-Am. C.H.R., Report No. 45/08
how long the courts of this state, this nation, or any OEA/Ser/L/V/II.132, doc. 21 (2008).
other nation review, re-review, and re-review once
again the disgusting facts of this crime and these
perpetrators, the result should be the same: These FN4.TEX.CODE CRIM. PROC. art. 11.071,
juries reached a reasonable verdict, beyond a § 5.
reasonable doubt, that a sentence of death was the
only appropriate punishment under Texas law. FN5.U.S. CONST. art. II, § 2, cl. 2.

Some societies may judge our death penalty barbaric. FN6.223 S.W.3d 315, 330-32
Most Texans, however, consider death a just penalty (Tex.Crim.App.2006).
in certain rare circumstances. Many Europeans may
disagree. So be it. But until and unless the citizens of FN7.Id. at 348-352.

this state or the courts of this nation decide that
capital punishment should no longer be allowed FN8.Medellin v. Texas, --- U.S. ----, 128
under any circumstances at all, the jury's verdict in S.Ct. 1346, 170 L.Ed.2d 190 (2008).
this particular case should be honored and upheld
because applicant received a fundamentally fair trial
under American law. FN9.Ex parte Medellin, supra, at 351.

FN10.Id. at 352.
MEYERS, J., filed a dissenting statement.
*9 I would file and set applicant's Article
11.071/original writ. See Ex parte Davis, 947 S.W.2d FN11. Optional Protocol Concerning the
216 (Tex.Crim.App.1996). Compulsory Settlement of Disputes to the
Vienna Convention on Consular Relations,
Apr. 21, 1963, 21 U.S.T. 325, T.I.A.S. No.
FN1. Applicant filed the pleadings in this 6820. “By ratifying the Optional Protocol to
case under the name “José Ernesto Medellín the Vienna Convention, the United States
Rojas.” However, all of the prior papers
filed in this Court, the papers filed in the consented to the specific jurisdiction of the
United States Supreme Court, and ICJ with respect to claims arising out of the
Vienna Convention.” Medellin v. Texas,
documents at the Texas Department of supra, S.Ct. at 1354.
Criminal Justice were entered under the
name “José Ernesto Medellín.” For FN12. As introduced in the House of
consistency, we will continue to use the
name “José Ernesto Medellín.” Representatives, and referred to the
Judiciary Committee, the bill reads:

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 8
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

effect. See, e.g., id. at 1357, 1367 (“Because
SECTION 1. SHORT TITLE. none of these treaty sources creates binding
federal law in the absence of implementing
legislation, and because it is uncontested
This Act may be cited as the “Avena Case
Implementation Act of 2008”. that no such legislation exists, we conclude
that the Avena judgment is not binding
domestic law. * * * In sum, while the ICJ's
SECTION 2. JUDICIAL REMEDY. judgment in Avena creates an international
law obligation on the part of the United
(a) CIVIL ACTION.-Any person whose States, it does not of its own force constitute
rights are infringed by a violation by any binding federal law that pre-empts state
nonforeign governmental authority of
restrictions on the filing of successive
Article 39 of the Vienna Convention on habeas petitions.”).
Consular Relations may in a civil action
obtain appropriate relief. FN14.Ex parte Smith, 977 S.W.2d 610, 611
(Tex.Crim.App.1998), citing Ex parte
(b) NATURE OF RELIEF.-Appropriate
relief for the purposes of this section Davis, 947 S.W.2d 216, 221, 223
(Tex.Crim.App.1996) (Opinion of
means- McCormick, P.J.) (“the Legislature clearly
has intended for Article 11.071 to provide
(1) any declaratory or equitable relief the exclusive means by which this Court
necessary to secure the rights; and may exercise its original habeas corpus
jurisdiction in death penalty cases.”).

(2) in any case where the plaintiff is
convicted of a criminal offense where the FN15.TEX. CONST. art. IV, § 11(b) ; 37
violation occurs during and in relation to TAC §§ 143.41(b) & (c) ; §§ 143.43(f)(1) &
the investigation or prosecution of the (j)(1).
offense, any relief required to remedy the

harm done by the violation, including the FN16.TEX. CONST. art. IV, § 11(b) ; 37
vitiation of the conviction or sentence TAC § 143.41(a).
where appropriate.
FN1. In his confession to the police, he did
(c) APPLICATION.-This Act applies with
tell the interviewing officer that “I was born
respect to violations occurring before, on, in Laredo Mexico on 3/4/75. I last went to
or after the date of the enactment of this school at Eisenhower High School and have
Act. a total of 8 years of formal education.”He
did nothing to inform the officer that,
FN13. In Medellin v. Texas, supra, S.Ct. at despite his almost life-long residence in the
1356, the Supreme Court observed, “No one U.S., he was not a U.S. citizen. He did tell

disputes that the Avena decision-a decision the Harris County Pre-Trial Services
that flows from the treaties through which Agency that he was not a U.S. citizen, but
the United States submitted to ICJ that public service agency has no law
jurisdiction with respect to Vienna enforcement or judicial role. It merely
Convention disputes-constitutes an collects information for assessing whether to
international law obligation on the part of recommend release on a pre-trial

the United States.”But the Supreme Court recognizance bond.
held that implementing legislation was
required before the particular international FN2. Applicant, like three of his fellow
law obligation embodied in Article 36 of the gang-member co-defendants and applicant's
Vienna Convention as construed by the ICJ younger brother, the one juvenile co-
in Avena would have binding domestic legal defendant, has a Hispan ic surname. In the

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 9
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

melting pot that is America, many U.S. “‘rights which are waivable only’ and
citizens have ethnic names, but are native denials of ‘absolute systemic requirements' “
born or naturalized. Our laws do not assume may be raised for the first time on appeal.
that those who were born in a foreign

country or who have ethnic surnames are not The failure to notify a foreign national
fellow citizens. defendant of his right to contact his
consulate is not such a “waivable only”
FN3.Ex parte Medellin, 223 S.W.3d 315 right nor is it one that is an absolute
(Tex.Crim.App.2006), aff'd,123 S.Ct. 1346 systemic requirement without which a

(2008). trial is necessarily fundamentally unfair.
In fact, the United States Supreme Court
FN4.Wainwright v. Sykes, 433 U.S. 72, 88, has expressly held that Vienna
97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Convention claims are subject to normal
American rules of procedural default if a
defendant fails to make a
FN5.Id. contemporaneous objection. Sanchez-

FN6.Id. at 89. Llamas v. Oregon, 548 U.S. 331, 360, 126
S.Ct. 2669, 165 L.Ed.2d 557 (2006) (“We
therefore conclude, as we did in Breard,
FN7.Id. at 90. that claims under Article 36 of the Vienna
Convention may be subjected to the same
FN8.Id. procedural default rules that apply
generally to other federal-law claims.”);

FN9.See, e.g., Saldano v. State, 70 S.W.3d Breard v. Greene, 523 U.S. 371, 375-76,
873, 886-88 (Tex.Crim.App.2002) (“Our 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998)
rules require defendants to object at trial in (per curiam ).
order to preserve an error for review on
appeal.... Our law has always been thus. The FN10.--- U.S. ----, 128 S.Ct. 1346, 170

courts of every state and the courts of the L.Ed.2d 190 (2008).
United States have similar rules.”)
(footnotes omitted). In Saldano, we noted FN11.See Robert Bolt, A Man for All
that “objections promote the prevention and Seasons (1960):
correction of errors. Wh en valid objections
are timely made and sustained, the parties
may have a lawful trial. They, and the William Roper: So, now you give the
Devil benefit of law!
judicial system, are no t burdened by appeal
and retrial. When a party is excused from Sir Thomas More: Yes! What would you
the requirement of objecting, the results are
the opposite.”Id. at 887.Of course, not all do? Cut a great road through the law to
rights are necessarily waived by the failure get after the Devil?
to assert them in a timely manner. As we
stated in Saldano,“[a]ll but the most William Roper: Yes, I'd cut down every
law in England to do that!
fundamental rights are thought to be
forfeited if not insisted upon by the party to
whom they belong. Many constitutional Sir Thomas More: Oh? And when the last
rights fall into this category. When we say law was down, and the Devil turned
‘that even constitutional guarantees can be ‘round on you, where would you hide,
waived by failure to object properly at trial,’ Roper, the laws all being flat? This
we mean that some, not all, constitutional country is planted thick with laws, from

rights may be forfeited.” Id. (some internal coast to coast, Man's laws, not God's! And
quotations omitted). Thus, violations of if you cut them down, and you're just the

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 10
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

man to do it, do you really think you FN15.See Roper v. Simmons, 543 U.S. 551,
could stand upright in the winds that 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005).
would blow then? Yes, I'd give the Devil
benefit of law, for my own safety's sake!
FN16. In addressing applicant's legal claims,
it is not necessary to recite all of the specific
FN12. Justice Stevens, in his concurring details of this disgusting sexual attack and
opinion in Medellin, not-so-subtly suggested tortuous murders. Suffice it to say that the
that, even though he and six other members jury heard overwhelming evidence of
of the Supreme Court affirmed the legal applicant's depravity and of the girls'

position of this Court concerning the suffering.
procedural default rule, we really should
review the merits of applicant's claim FN17.See Stephen Sondheim, “Gee Officer
because “[t]he cost to Texas of complying Krupke,” West Side Story:
with Avena would be minimal, particularly
given the remote likelihood that the
violation of the Vienna Convention actually Dear kindly Sergeant Krupke,

prejudiced José Ernesto Medellin.” 128 You gotta understand,
S.Ct. at 1375 (Stevens, J., concurring). I
agree with Justice Stevens that it is
extremely remote that applicant was It's just our bringin' up-ke
prejudiced in any way by the failure of
Texas officials to inform him that he could That gets us out of hand.
seek assistance from his consulate.

Our mothers all are junkies,
FN13.Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966). One can Our fathers all are drunks.
only wonder if the criminal justice systems
with which the distinguished judges on the
Golly Moses, natcherly we're punks!
ICJ are familiar require that law
enforcement officers give all arrested Gee, Officer Krupke, we're very upset;
suspects explicit warnings concerning their
right to silence, their right to an attorney
before talking to the police, the right to have We never had the love that ev'ry child
an attorney appointed for them if they oughta get.
cannot afford them, notification that any

statements that they make can be used We ain't no delinquents,
against them in a court of law, and, under
Texas law, the right to terminate an We're misunderstood.
interview with the police at any time.
Telling an arrested foreign national that he
has a right to contact his consulate is an Deep down inside us there is good!
important international right, but surely it is
FN18. In its published opinion, Medellin v.
not nearly as important as giving him Dretke, 371 F.3d 270 (5th Cir.2004) , the
Miranda-type warnings. Fifth Circuit sets out the history of these

FN14. A sixth member of the gang was also ineffective assistance of counsel claims. One
prosecuted, but was not sentenced to death of those claims was that counsel failed to
offer evidence that applicant had
because, under Texas law, he was a juvenile successfully completed a prior juvenile
at the time of the offense and thus ineligible probation and this evidence would have
for the death penalty. shown that he was not a future danger. The
Fifth Circuit noted that this failure was

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf --- S.W.3d ---- Page 11
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

hardly important in comparison to the brutal
murders he committed thereafter or the fact
that on “two separate occasions while
[applicant] was in the Harris County jail

awaiting trial, [he] was found to have hidden
shanks in his cell. One cannot reasonably
fathom how the fact that [applicant] once
complied with probation as a juvenile rebuts
the overwhelming evidence that [he] posed a
future danger. Nothing that his probation
officer may have said could have

conceivably caused the jury to decide the
question of [applicant's] future
dangerousness in [his] favor.”Id. at 276.

FN19.Medellin v. Texas, --- U.S. ----,----,

128 S.Ct. 1346,1375, 170 L.Ed.2d 190
(2008) (Stevens, J., concurring).
Tex.Crim.App.,2008.
Ex parte Medellin
--- S.W.3d ----, 2008 WL 2952485 (Tex.Crim.App.)

END OF DOCUMENT

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 2952485.rtf No. 08-_____
===============================================================

IN THE

Supreme Court of the United States

--------------------------------- ▯ ---------------------------------

OSÉ ERNESTO M EDELLÍ,
Petitioner,

vs.

T HESTATE OFTEXAS ,
Respondent.

--------------------------------- ▯ ---------------------------------

ON PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS OF TEXAS

--------------------------------- ▯ ---------------------------------

PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS OF TEXAS

--------------------------------- ▯ ---------------------------------

SANDRA L. ABCOCK D ONALD FRANCISD ONOVAN
Clinical Professor of Law
(Counsel of Record)
Northwestern University School of LaCATHERINE M. AMIRFAR
357 E. Chicago Avenue JILL VANBERG
Chicago, Illinois 60611 W ILLIAMC.W EEKS
Tel: (312) 503-0114 DEBEVOISE & PLIMPTON LLP

919 Third Avenue
New York, NY 10022-3916
(212) 909-6000

Attorneys for Petitioner

=============================================================== i

CAPITAL CASE

QUESTIONS PRESENTED

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004
I.C.J. 12 (Mar. 31), the International Court of Justice determined that José Ernesto
Medellín and fifty other Mexican nationals under sentence of death in the United States
were entitled to receive judicial review and reconsideration of their convictions and
sentences in light of the violation of their rights under the Vienna Convention on

Consular Relations in their capital murder trials. In Medellín v. Texas, 128 S. Ct. 1346
(2008), this Court held that the United States is bound under Article 94(1) of the United
Nations Charter to comply with the Avena Judgment and settled the procedures by which,
as a matter of U.S. constitutional law, the international obligation to comply may be
given domestic effect. Specifically, this Court held that neither it nor the President had
the authority to execute the international obligation, which instead lies with the Congress.
In response to that ruling, legislation to implement Avena has been introduced in the U.S.

House of Representatives, yet the State of Texas, having scheduled Mr. Medellín’s
execution for August 5, 2008, has indicated that it intends to go forward with the
execution before Congress has had a reasonable opportunity to exercise its constitutional
prerogative to determine compliance.

This case presents the following questions:

1. Whether Mr. Medellín’s Fourteenth Amendment right not to be deprived of his
life without due process of law entitles him to remain alive until Congress has had
a reasonable opportunity to exercise its constitutional prerogative to implement
the right to judicial review and reconsideration under Avena and Other Mexican

Nationals, so that he can secure access to a remedy to which he is entitled by
virtue of a binding international legal obligation of the United States;

2. Whether the Court should grant a writ of habeas corpus to adjudicate Mr.
Medellín's claim on the merits, where he seeks relief pursuant to a binding
international legal obligation that the federal political branches seek to implement,
and where adequate relief cannot be obtained in any other form or from any other
court; and

3. Whether the Court should recall and stay its mandate in Medellín v. Texas, 128 S.
Ct. 1346, not to revisit the merits, but to allow Congress a reasonable opportunity
to implement legislation consistent with the Court’s decision in that case. ii

PARTIES

All parties to the proceedings below are named in the caption of the case. iii

TABLE OF CONTENTS

QUESTIONS PRESENTED................................................................................................ i

PARTIES............................................................................................................................ii

TABLE OF CONTENTS...................................................................................................iii

TABLE OF AUTHORITIES...............................................................................................v

OPINION BELOW..............................................................................................................1

JURISDICTION ..................................................................................................................1

CONSTITUTIONAL, TREATY AND STATUTORY PROVISIONS
INVOLVED...............................................................................................................1

STATEMENT OF THE CASE............................................................................................1

A. Avena and Subsequent Proceedings.........................................................................1

B. Medellín v. Texas.....................................................................................................3

C. Scheduling of Execution Date .................................................................................5

D. Subsequent Proceedings Before the International Court of Justice.........................6
E. Introduction of Congressional Legislation...............................................................8

F. Denial of Federal Habeas Relief..............................................................................9

G. Decision of the Inter-American Commission on Human Rights.............................9

H. Further Political and Diplomatic Efforts to Effect Compliance with the
Avena Judgment.....................................................................................................12

I. The Proceedings Below.........................................................................................13

REASONS FOR GRANTING A WRIT OF CERTIORARI ............................................14

I. The Court Should Grant The Writ of Certiorari In Order To Protect Mr.
Medellín’s Due Process Rights, The Constitutional Prerogatives Of
Congress, And The Foreign Policy Interests Of The United States.........................16

A. The Court Should Grant The Writ In Order To Prevent The Irreparable
Deprivation Of Mr. Medellín’s Life Without Due Process Of Law By
Virtue Of His Execution In Violation Of An Undisputed Legal Obligation

Of The United States..............................................................................................16 iv

B. The Court Should Grant The Writ In Order To Preserve The
Constitutional Prerogative Of Congress To Determine Compliance With

The United States’s Obligation Under Article 94(1).............................................24

C. The Court Should Grant The Writ In Order To Preserve The United
States’s Credibility In International Affairs Generally And In Its
Treatymaking Activity Specifically.......................................................................27

CONCLUSION..................................................................................................................34 v

TABLE OF AUTHORITIES

Federal Cases:

Barefoot v. Estelle, 463 U.S. 880 (1983).......................................................................................19

Beck v. Alabama, 447 U.S. 625 (1980)..........................................................................................18

Foster v. Nelson, 26 U.S. (2 Pet.) 253 (1829)................................................................................24

Gardner v. Florida, 430 U.S. 349 (1977)......................................................................................19

Head Money Cases (Edye v. Robertson), 112 U.S. 580 (1884).....................................................21

Medellin v. Dretke, 544 U.S. 660 (2005)............................................................................... passim

Medellin v. Quarterman, No. H-06-3688, 2008 U.S. Dist. LEXIS 55758 (S.D.
Tex. July 22, 2008)..................................................................................................................12

Medellin v. Texas, 128 S. Ct. 1346 (2008) ............................................................................ passim

Medellín v. Dretke, 543 U.S. 1032 (2004).......................................................................................3

Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804).......................................22

Oetjen v. Central Leather Co., 246 U.S. 297 (1918).....................................................................25

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998) ...................................................18

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ......................................22, 27

Whitney v. Robertson, 124 U.S. 190 (1888) ............................................................................21, 24

State Cases:

Ex parte Medellín, 223 S.W.3d 315 (Tex. Crim. App. 2006)....................................................3, 25

International Cases:

Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J.
12 (Mar. 31)..................................................................................................................... passim

Constitutional Provisions:

U.S. Const. art. VI, cl. 2......................................................................................................... passim

U.S. Const. amend. XIV................................................................................................................18 vi

Treaties and Federal Statutes:

28 U.S.C. § 1257(a).........................................................................................................................1

28 U.S.C. § 2241.................................................................................................................... passim

Charter of the Organization of American States, Apr. 30, 1948, 2 U.S.T. 2394,
T.I.A.S. No. 2361 ................................................................................................................9, 10

United Nations Charter, opened for signature June 26, 1945 T.S. No. 993, 59 Stat.
1031.................................................................................................................................. passim

Protocol of Buenos Aires, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No. 6847................................10

Vienna Convention on Consular Relations, opened for signature Apr. 24, 1963,
21 U.S.T. 77, 596 U.N.T.S. 261....................................................................................... passim

Other Authorities:

1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (Max Farrand ed., rev. ed.
1996)........................................................................................................................................33

Rule 43.2, Rules of Procedure of the Inter-American Commission on Human
Rights.......................................................................................................................................12 1

OPINION BELOW

The opinion of the Court of Criminal Appeals of Texas has not yet issued. In

light of his scheduled execution on August 5, 2008, Petitioner lodges this submission

with the Court in the event that that Court denies him the relief sought.

JURISDICTION

The final judgment of the Court of Criminal Appeals of Texas, that state’s court

of last resort in criminal matters, will issue before August 5, 2008. Having been lodged,

this petition will have been filed within 90 days of that judgment. This Court has

jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL, TREATY AND STATUTORY PROVISIONS INVOLVED

This case involves the following provisions, which are reproduced beginning at

page 1a in the Appendix.

STATEMENT OF THE CASE

A. Avena and Subsequent Proceedings

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.),

2004 I.C.J. 12 (Mar. 31) (“Avena”), the International Court of Justice (“ICJ”) determined

that Mr. Medellín and fifty other Mexican nationals under sentence of death in the United

States, whose rights to consular notification and access under the Vienna Convention on

Consular Relations had been violated in their capital murder trials, were entitled to

receive judicial review and reconsideration of their convictions and sentences in light of

the violations in their cases. On December 10, 2004, in response to Mr. Medellín’s

petition, this Court granted a writ of certiorari to decide whether, under the Supremacy 2

Clause of the Constitution, courts in the United States must give effect to the United

States’s treaty obligations to comply with the Judgment of the ICJ. Medellín v. Dretke,

543 U.S. 1032 (2004) (order granting writ of certiorari).

On February 28, 2005, before the case had been fully submitted, President George

W. Bush issued a written determination that the United States had a binding obligation

under international law to comply with Avena. Br. for U.S. as Amicus Curiae Supporting

Resp’t at App. 2, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928). He also

determined that, to achieve compliance, state courts should provide review and

reconsideration to the fifty-one Mexican nationals named in the Avena Judgment,

including Mr. Medellín, pursuant to the criteria set forth by the ICJ, notwithstanding any

state procedural rules that might otherwise bar review of the claim on the merits.

In deference to the President’s determination, Mr. Medellín filed a motion to stay

his case in this Court, requesting that the case be held in abeyance while he exhausted in

state court his claims based on Avena and the President’s determination, neither of which

had been issued at the time of his first state post-conviction petition.

On May 23, 2005, this Court dismissed the writ of certiorari as improvidently

granted, in part because of the prospect of relief in Texas state court and in part because

of potential obstacles to reaching the merits posed by the procedural posture of the case

as then before the Court. Medellín v. Dretke, 544 U.S. 660, 662 (2005) (per curiam).

Following this Court’s dismissal, Mr. Medellín pursued relief in the Texas Court

of Criminal Appeals, where he argued that the treaty obligation to abide by the Avena

decision and the President’s determination to comply each constituted binding federal 3

law that, by virtue of the Supremacy Clause of the Constitution, preempted any

inconsistent provisions of state law. On November 15, 2006, the Court of Criminal

Appeals dismissed Mr. Medellín’s application, holding that neither the Avena Judgment

nor the President’s determination constituted preemptive federal law and that Mr.

Medellín was procedurally barred from seeking relief on a subsequent habeas application.

Ex parte Medellín, 223 S.W.3d 315 (Tex. Crim. App. 2006).

On April 30, 2007, on Mr. Medellín’s petition, the Court granted a writ of

certiorari to determine whether courts in the United States or the President had the

authority to execute the United States’s obligation to comply with Avena. Medellin v.

Texas, 127 S. Ct. 2129 (U.S. 2007) (order granting writ of certiorari).

B. Medellín v. Texas

In Medellín v. Texas, 128 S. Ct. 1346 (2008), the Court held that under Article

94(1) of the United Nations Charter, a valid treaty of the United States, the United States

has a binding international obligation to comply with Avena by providing review and

reconsideration to Mr. Medellín and the other Mexican nationals subject to that judgment.

Specifically, the Court observed that “no one disputes” that the obligation to abide by the

Avena judgment, which “flows from the treaties through which the United States

submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an

international law obligation on the part of the United States.” Id. at 1356. The Court

also expressly noted its agreement with the President as to the importance of United

States’s compliance with that obligation. Id. at 1367. 4

The Court held, however, that that international obligation had not yet been

validly executed as a matter of U.S. domestic law. First, courts are not empowered to

automatically enforce ICJ decisions as domestic law because the “sensitive foreign policy

decisions” of whether and how to comply are reserved for the he political branches. Id. at

1360. Second, the “array of political and diplomatic means available [to the President] to

enforce international obligations” does not include the power to “unilaterally convert[] a

non-self-executing treaty into a self-executing one.” Id. at 1368. Hence, “while the ICJ’s

judgment in Avena creates an international law obligation on the part of the United States,

it does not of its own force constitute binding federal law that pre-empts state restrictions

on the filing of successive habeas petitions.” Id. at 1367. Instead, an additional step by

the political branches is necessary, including action by Congress to pass implementing

legislation, id. at 1369, or by the President “by some other means, so long as they are

consistent with the Constitution,” id. at 1371.

Concurring in the judgment, Justice Stevens also noted that the United States’s

international obligation to provide review and reconsideration under the Avena Judgment

was undisputed. Id. at 1374. He urged action by Texas to “shoulder the primary

responsibility for protecting the honor and integrity of the Nation,” id. at 1374,

particularly where “the costs of refusing to respect the ICJ’s judgment are significant,” id.

at 1375.

Justice Breyer, joined by Justices Souter and Ginsburg, dissented, stating that the

Supremacy Clause of the U.S. Constitution required that the state courts comply with

Avena, since “the treaty obligations, and hence the judgment, resting as it does upon the 5

consent of the United States to the ICJ’s jurisdiction, bind[s] the courts no less than

would ‘an act of the [federal] legislature.’” Id. at 1376 (internal cites omitted). Like the

majority, Justice Breyer recognized that noncompliance would exact a heavy toll on the

United States. Id. at 1391.

C. Scheduling of Execution Date

Almost immediately following this Court’s decision, Texas state prosecutors

sought an execution date for Mr. Medellín. At a hearing before the Texas trial court on

May 5, 2008, Mr. Medellín requested that the court defer scheduling an execution date in

order to allow the national and state legislatures time to implement the Avena Judgment,

as this Court’s decision contemplated. Texas State Senator Rodney Ellis wrote to the

court to request that it defer setting a date in light of his intention to introduce legislation

by which Texas would comply with Avena as soon as the Texas Legislature reconvened

in January 2009. 15a-16a. On May 2, 2008, Ambassador Jeffrey Davidow, who holds

the rank of Career Ambassador (the highest rank available to diplomats) and served as an

ambassador for the United States in the administrations of Presidents Ronald Reagan,

George H.W. Bush, Bill Clinton, and George W. Bush, submitted a declaration

addressing the negative ramifications for U.S. foreign relations, including for the

protection of Americans abroad. The court declined to hear evidence and instead

scheduled Mr. Medellín’s execution for the first date available under state law. See 136a.

Hence, Mr. Medellín is scheduled to die by lethal injection on August 5, 2008. 6

D. Subsequent Proceedings Before the International Court of Justice

On June 5, 2008, in light of the action by Texas to execute Mr. Medellín without

having provided him review and reconsideration and the failure as of that date by the

United States effectively to implement the judgment within its domestic legal system,

Mexico instituted new proceedings in the International Court of Justice by filing a

Request for Interpretation of the Avena Judgment. See Application Instituting

Proceedings, Request for Interpretation of the Judgment of 31 March 2004 in the Case

1
Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), June 5, 2008. Mexico

asked the ICJ to declare that the United States has an obligation to use any and all means

necessary to provide that review before any execution is carried out. In conjunction with

its Request for Interpretation, Mexico also asked the ICJ to indicate provisional measures

with respect to Mr. Medellín and four other Mexican nationals named in the Avena

Judgment who face imminent execution in Texas. Mexico’s Request for Interpretation

of the Avena Judgment opens a new case before the ICJ and is currently pending review.

The ICJ held oral proceedings on the request for provisional measures on June 19

and 20, 2008. At argument, the Legal Adviser to the Secretary of State confirmed “that

the United States takes its international law obligation to comply with the Avena

1 The parties’ written and oral pleadings and the judgment, orders and press releases of the International
Court of Justice in respect of the Request for Interpretation are available at http://www.icj-
cij.org/docket/index.php?p1=3&p2=1&code=&case=139&k=11 (last visited July 30, 2008).

2 The four other Mexican nationals subject to the request for provisional measures have not received

execution dates but are eligible under state law to have dates scheduled. 7

Judgment seriously” and agreed that Avena requires the provision of review and

reconsideration prior to the imposition of any death sentence. See 90a; 92a; 93a.

On June 16, 2008, the ICJ rejected the United States’s request to dismiss the case

and granted Mexico’s request for provisional measures, directing the United States to

“take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas [and

four other Mexican nationals] are not executed pending judgment on the Request for

interpretation submitted by the United Mexican States, unless and until these five

Mexican nationals receive review and reconsideration consistent with paragraphs 138 to

141 of the [Avena] Judgment.” 38a, ¶ 80(a). In particular, the Court noted

that the United States has recognized that, were any of the
Mexican nationals named in the request for the indication
of provisional measures to be executed without the
necessary review and reconsideration required under the

Avena Judgment, that would constitute a violation of
United States obligations under international law; … in
particular, the Agent of the United States declared before
the ICJ that “[t]o carry out Mr. Medellín’s sentence without
affording him the necessary review and reconsideration
obviously would be inconsistent with the Avena

Judgment[.]”

37a, ¶ 76. The Court further noted that “the Agent of the United States acknowledged

before the Court that ‘the United States would be responsible, clearly, under the principle

of State responsibility for the internationally wrongful actions of [state] officials[.]’” Id.

at ¶ 77. Nonetheless, commenting on reports of the ICJ’s Order in the press, Texas

Governor Perry’s office stated: “The world court has no standing in Texas and Texas is

not bound by a ruling or edict from a foreign court.” Allan Turner & Rosanna Ruiz,

Texas to World Court: Executions Are Still On, Houston Chron., July 17, 2008, at A1. 8

The submission of the United States in response to Mexico’s Request for Interpretation is

due on August 29, 2008. The case has been set on an expedited schedule and a decision

is likely to issue this year.

E. Introduction of Congressional Legislation

On July 14, 2008, following this Court’s decision in Medellín v. Texas, Members

of the House of Representatives introduced legislation to give the Avena Judgment

domestic legal effect. The “Avena Case Implementation Act of 2008” grants foreign

nationals such as Mr. Medellín a right to judicial review of their convictions and

sentences in light of Vienna Convention violations in their cases. 5a-6a. The proposed

bill specifically authorizes courts to provide “any relief required to remedy the harm done

by the violation [of rights under Article 36 of the Vienna Convention], including the

vitiation of the conviction or sentence where appropriate.” 6a, § 2. The bill was

introduced by Howard L. Berman, Chairman of the Committee for Foreign Affairs and

Vice Chairman of the Judiciary Committee, and referred to the Judiciary Committee for

consideration. Since that time, the Chairman of that Committee, John Conyers, Jr., and

Committee Members Zoe Lofgren and William D. Delahunt have joined as co-sponsors

of the bill.

The bill is now under review. On June 19, 2008, before the International Court of

Justice, the United States stated that “[g]iven the short legislative calendar for our

Congress this year, it [will] not be possible for both houses of our Congress to pass

legislation” implementing the Avena decision. 88a, ¶ 26. 9

F. Denial of Federal Habeas Relief

On November 21, 2006, to satisfy the applicable statute of limitations while his

first subsequent habeas application was pending in the Texas Court of Criminal Appeals,

Mr. Medellín filed a habeas petition in the U.S. District Court for the Southern District of

Texas, raising claims related to the enforceability of the Avena Judgment as a matter of

applicable treaties and the President’s 2005 determination to comply. After this Court

granted a writ of certiorari to review the denial of Mr. Medellín’s first subsequent

application, the district court stayed and administratively closed Mr. Medellín’s case. On

July 22, 2008, the court reopened proceedings for the limited purpose of determining

jurisdiction over Mr. Medellín’s petition, and denied relief. Medellin v. Quarterman, No.

H-06-3688, 2008 U.S. Dist. LEXIS 55758 (S.D. Tex. July 22, 2008). The court

concluded that the federal habeas statute’s limitation on successive petitions prevented it

from considering Mr. Medellín’s petition on the merits without prior authorization from

the Court of Appeals. Id. at *7.

G. Decision of the Inter-American Commission on Human Rights

On November 21, 2006, Mr. Medellín filed a petition before the Inter-American

Commission on Human Rights raising the violation of his consular rights as well as

several violations of the 1948 Declaration of the Rights and Duties of Man (“American

Declaration”). The Inter-American Commission is the principal human rights organ of

the Organization of American States (“OAS”) and is empowered to consider and evaluate

the merits of human rights violations raised by individuals from any OAS member state. 10

See Inter-American Commission on Human Rights, What is the IACHR?, at

http://www.cidh.oas.org/what.htm; see also Thomas Buergenthal, International Human

Rights in a Nutshell 174, 179, 181-82 (2d ed. 1995). As a member of the OAS, the

United States has recognized the Commission’s competence to consider such petitions. 3

On December 6, 2006, the Commission issued precautionary measures—

analogous to a temporary injunction and similar to the provisional measures ordered by

the ICJ—calling upon the United States to take all measures necessary to preserve Mr.

Medellín’s life pending the Commission’s investigation of the allegations raised in his

petition. 74a-75a. After Mr. Medellín was scheduled for execution, the Commission

reiterated to the United States the precautionary measures it adopted in favor of Mr.

Medellín in 2006 and reminded the United States of its request that Mr. Medellín’s life be

preserved pending the investigation of his petition. 76a; see also 77a-79a.

Both Mr. Medellín and the United States filed written submissions and made oral

arguments to the Commission at a hearing conducted on March 7, 2008, at the

Commission headquarters in Washington, D.C. The Commission also considered

extensive documentary evidence, including many of the documents submitted to the court

3 The United States has signed and ratified the Charter of the Organization of American States (“OAS
Charter”), Apr. 30, 1948, 2 U.S.T. 2394, as well as the Protocol of Buenos Aires that amended the
OAS Charter and established the Commission as a principal organ through which the OAS would
accomplish its purposes. Protocol of Buenos Aires, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No. 6847.
As ratified treaties of the United States, both instruments apply with equal force and supremacy to all
states, including Texas. U.S. Const. art. VI, cl. 2. The amended OAS Charter specifically provided

that “[t]here shall be an Inter-American Commission on Human Rights, whose principal function shall
be to promote the observance and protection of human rights and to serve as a consultative organ of
the Organization in these matters.” OAS Charter, art. 106. Under Article 145, the Inter-American
Commission is given the responsibility to “keep vigilance over the observance of human rights.” Id.,
art. 145. 11

below. On July 24, 2008, after reviewing the legal arguments of both parties and the

facts submitted in support of Mr. Medellín’s claims for relief, the Commission issued a

preliminary report concluding, in pertinent part, that Mr. Medellín was prejudiced by the

violation of his rights to consular notification and assistance. Specifically, the

Commission found:

It is apparent from the record before the Commission that,
following [Mr.] Medellin[’s] conviction and sentencing,
consular officials were instrumental in gathering significant
evidence concerning [his] character and background. This
evidence, including information relating to [his] family life

as well as expert psychological reports, could have had a
decisive impact upon the jury’s evaluation of aggravating
and mitigating factors in [his] case[]. In the Commission’s
view, this information was clearly relevant to the jury’s
determination as to whether the death penalty was the
appropriate punishment in light of [his] particular
circumstances and those of the offense.

65a, ¶ 128. The Commission concluded that the United States’s obligation under Article

36(1) of the Vienna Convention to inform Mr. Medellín of his right to consular

notification and assistance constituted a fundamental component of the due process

standards to which he was entitled under the American Declaration, and that the United

States’s failure to respect and ensure this obligation deprived him of a criminal process

that satisfied the minimum standards of due process and a fair trial required by the

Declaration. 66a, ¶ 132.

As to remedies, the Commission recommended, among other things, that the

United States vacate Mr. Medellín’s death sentence and provide him with “an effective

remedy, which includes a new trial in accordance with the equality, due process and fair 12

trial protections prescribed under . . . the American Declaration, including the right to

competent legal representation.” 72a, ¶ 160. The Commission also reiterated its requests

of December 6, 2006, and January 30, 2007, that the United States take precautionary

measures to preserve Mr. Medellín’s life pending the implementation of the

4
Commission’s recommendations in the matter. 71a, ¶ 159.

H. Further Political and Diplomatic Efforts to Effect Compliance with
the Avena Judgment.

Since this Court issued its decision in Medellin v. Texas, the governments of

Mexico and the United States have resumed their efforts to achieve compliance with the

Avena Judgment. On June 17, 2008, Secretary of State Condoleezza Rice and Attorney

General Michael B. Mukasey asked for Texas’s help in complying with the Avena

Judgment. In a joint letter to Governor Rick Perry, the Secretary of State and Attorney

General stated:

The United States attaches great importance to complying with its
obligations under international law . . . . We continue to seek a

practical and timely way to carry out our nation’s international
legal obligation [under Avena], a goal that the United States needs
the assistance of Texas to achieve. In this connection, we
respectfully request that Texas take the steps necessary to give

effect to the Avena decision with respect to the convictions and
sentences addressed therein.

4
The Commission has not yet issued its final report, and will not do so until the United States has had
an opportunity to respond to the Commission’s findings. See Rule 43.2, Rules of Procedure of the
Inter-American Commission on Human Rights, available at http://www.cidh.org/Basicos/English/
Basic18.Rules%20of%20Procedure%20of%20the%20Commission.htm. Until the United States takes
steps to implement the Commission’s recommendations, precautionary measures remain in effect. 13

80a-81a. On July 18, 2008, Governor Perry responded, acknowledging the “concerns

from a federal standpoint about the importance of international law” and stating his belief

that the “international obligation” to comply with Avena is properly a matter within the

province of the federal executive branch and Congress. 82a. Governor Perry further

stated that he was “advised” that the “State of Texas will ask the reviewing court [in

federal habeas proceedings] to address the claim on the merits.” Id.

On July 28, 2008, Mexico’s Secretary of Foreign Affairs, Patricia Espinosa

Cantellano, also sent a letter to Governor Perry and asked him to suspend Mr. Medellín’s

execution and to help ensure that Mr. Medellín is afforded the judicial hearing to which

he is entitled as a result of the Avena Judgment. 84a-85a.

I. The Proceedings Below

On July 28, 2008, after his federal habeas petition was dismissed, Mr. Medellín

filed a second subsequent application for a writ of habeas corpus in the Texas Court of

Criminal Appeals, and along with it, an application for a stay of execution. Mr. Medellín

argued that his constitutional rights to life and due process of the law entitle him to

reasonable access to a remedy of judicial process that the United States is bound as a

matter of international law to provide, and that therefore to execute Mr. Medellín before

the competent political actors have had a reasonable opportunity to convert the Nation’s

international law obligation under the Avena Judgment into a justiciable legal right would

amount to an unconstitutional deprivation of his right to life without due process of law.

In addition, Mr. Medellín argued that his execution without having received the required 14

review and reconsideration would impinge upon the constitutional authority of Congress,

confirmed by this Court, to give effect to the United States’s obligation under Article

94(1) of the United Nations Charter to comply with the Avena Judgment. In his stay

application, Mr. Medellín asked the Court to delay his execution to allow the competent

political authorities a reasonable opportunity to implement the Judgment.

Although the Texas Court of Criminal Appeals has not yet ruled on Mr.

Medellín’s applications, his scheduled execution in six short days from now compels him

to file in the event the CCA denies relief.

REASONS FOR GRANTING A WRIT OF CERTIORARI

Mr. Medellín is scheduled to be executed by lethal injection on August 5, 2008,

although he has yet to receive the review and reconsideration of his conviction and

sentence mandated by the Avena Judgment of the International Court of Justice. In

Medellin v. Texas, 128 S. Ct. 1346 (2008), this Court confirmed that the United States is

bound as a matter of international law to comply with the Avena Judgment, and clarified

that it falls to Congress to determine whether and how to give the Judgment domestic

legal effect.

No one—not this Court, not the Executive, not Congress, not Texas—disputes the

United States’s “plainly compelling” interest in complying with the international

obligation reflected in Avena. In the four months since this Court’s decision in Medellín

v. Texas, federal and state actors have been engaged in unprecedented efforts to find an

alternative and expeditious means of implementing the United States’s obligations under

the Avena Judgment. The House of Representatives has introduced legislation sponsored 15

jointly by the Chairmen of both the Committees of Foreign Affairs and the Judiciary, the

Secretary of State and Attorney General have called upon Texas to work with the federal

government to avoid a breach of its treaty commitments, a Texas senator has promised to

introduce legislation to implement Avena as soon as the Texas Legislature reconvenes,

and leaders of the diplomatic and business communities have warned that Mr. Medellín’s

execution could have grave consequences for Americans abroad.

Despite this extraordinary and unique set of circumstances, Texas has set Mr.

Medellín’s execution for the earliest possible date under Texas law, and proceeds

implacably towards execution on August 5. If allowed to proceed, Texas will

simultaneously deprive Mr. Medellín of reasonable access to a remedy required under a

binding international legal obligation and place the United States in irreparable breach of

its treaty obligations. Under these unique circumstances, Mr. Medellín’s execution

would violate his constitutionally protected right not to be deprived of his life without

due process of law. And by placing the United States in irreparable breach of its treaty

commitments before Congress and the federal Executive can act to compel compliance,

Texas effectively will usurp the institutional prerogative of the federal political

branches—advocated by Texas in Medellin v. Texas and confirmed by this Court—to

determine whether and how to give domestic legal effect to the treaty obligations of the

Nation. This Court must not allow Texas to subvert Mr. Medellín’s constitutional rights

and the compelling institutional interests of Congress and the Executive in a race to

execution, particularly given the overwhelming public interest in achieving compliance

with the Avena Judgment. 16

In view of the exceptional circumstances of this case, Mr. Medellín respectfully

seeks three alternative forms of relief from this Court: (1) a writ of certiorari in the event

that the Texas Court of Criminal Appeals dismisses his pending applications for habeas

relief and a stay of execution; or (2) a writ of habeas corpus; or (3) recall of this Court’s

mandate in Medellin v. Texas, 128 S. Ct. 1346 (2008), for the purpose of preserving

Congress’s ability to bring the nation into compliance with the Avena Judgment. Finally,

in connection with whichever form of relief the Court may deem appropriate to grant, Mr.

Medellín asks this Court to grant his motion for a stay of his execution for such time as is

necessary to permit the competent political actors a reasonable opportunity to act to

comply consistent with this Court’s decision in Medellin v. Texas.

I. The Court Should Grant The Writ of Certiorari In Order To Protect Mr.
Medellín’s Due Process Rights, The Constitutional Prerogatives Of Congress,

And The Foreign Policy Interests Of The United States.

A. The Court Should Grant The Writ In Order To Prevent The
Irreparable Deprivation Of Mr. Medellín’s Life Without Due Process
Of Law By Virtue Of His Execution In Violation Of An Undisputed
Legal Obligation Of The United States.

This case comes to this Court in a unique but extraordinarily compelling set of

circumstances. Every Member of this Court, the President of the United States, and, in

pleadings before this Court, the State of Texas have confirmed that the United States has

a binding legal obligation arising under Article 94(1) of the United Nations Charter not to

execute Mr. Medellín unless and until he has received the review and reconsideration

ordered by the ICJ in Avena. That obligation has been confirmed within the last two

weeks in correspondence between, on the one hand, the Attorney General and Secretary 17

of State of the United States and, on the other, the Governor of Texas. Hence, if Texas

were to proceed with the scheduled execution of Mr. Medellín next Tuesday, August 5,

there could be no dispute that that execution would be unlawful—specifically, in

violation of treaty commitments validly made by the United States through

constitutionally prescribed processes.

In Medellín v. Texas, this Court has just held, however, that the international legal

obligation arising from the U.S.’s ratification of the United Nations Charter has not yet

been made effective as a matter of U.S. domestic law. Specifically, the Court held, first,

that the Article 94(1) obligation to comply with Avena was not self-executing so as to

allow a court in the United States to enforce it, and, second, the President acted beyond

his authority when he ordered that the United States would comply with the obligation by

having state courts provide the required review and reconsideration. Hence, the Court

held, it was Congress to which the Constitution assigned the authority to determine

whether and how the United States would comply with the undisputed international

obligation arising from Article 94(1).

In response to this Court’s decision, Congress has begun to act. On July 14, 2008,

legislation was introduced by leaders of the U.S. House of Representatives that would

grant to Mr. Medellín a domestic-law right to the review and reconsideration ordered by

the ICJ. The bill is now sponsored by the Chairman, and two additional Members, of the

Judiciary Committee as well as the Chairman of the Committee for Foreign Affairs. See

Statement of the Case, Part E. In addition, on May 5, 2008, Texas State Senator Rodney

Ellis stated that he would introduce legislation by which Texas would, as a matter of state 18

law, achieve compliance with Avena. See Statement of the Case, Part C. Needless to say,

however, there has not been enough time for either of these legislative initiatives to bear

fruit. It will simply not be possible for Congress to complete consideration of the bill in

light of the short legislative calendar this year, 88a, ¶ 26, and Senator Ellis will not be

able to introduce his bill until the Texas Legislature reconvenes in January 2009.

In these circumstances, it would violate Mr. Medellín’s right not to be deprived of

his life without due process of law were he to be executed as scheduled on August 5. See

U.S. Const. amend. XIV; Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 288

(1998) (“[a] prisoner under death sentence remains a living person and consequently has

an interest in his life”) (O’Connor, J., concurring); id. at 291 (“There is . . .no room for

legitimate debate about whether a living person has a constitutionally protected interest in

life.”) (Stevens, J., concurring in part and dissenting in part). “[A]s [the Supreme Court

has] often stated, there is a significant constitutional difference between the death penalty

and lesser punishments.” Beck v. Alabama, 447 U.S. 625, 637 (1980).

At its most basic, due process guarantees to a criminal defendant a right not to be

deprived of "fundamental fairness essential to the very concept of justice.” Lisenba v.

California, 314 U.S. 219, 236 (1941); see also Morrissey v. Brewer, 408 U.S. 471, 481

(1972) ("[D]ue process is flexible and calls for such procedural protections as the

particular situation demands."); Mathews v. Eldridge, 424 U.S. 319 (1976) (noting “the

truism that ‘[d]ue process,’ unlike some legal rules, is not a technical conception with a

fixed content unrelated to time, place and circumstances.”); cf. Logan v. Zimmerman, 455

U.S. 422, 429-30 (1982) (due process bars a state from denying a litigant "an opportunity 19

to be heard upon [his] claimed [right].”) (quoting Boddie v. Connecticut, 401 U.S. 371,

380 (1971). Applying that basic principle here, Mr. Medellín cannot be executed

consistent with due process if he is executed in violation of a binding legal obligation

arising from a treaty voluntarily entered into by the United States to provide him

additional process in the form of review and reconsideration. As a matter of law, that

additional process could change the outcome on either his conviction or sentence. See

65a, ¶ 128 (finding prejudice as a result of the Vienna Convention violation in Mr.

Medellín’s case); App. for Stay of Execution Pending Disposition of Mot. to Recall and

Stay the Mandate and Petition for Writ of Certiorari at Part I.A, Medellin v. Texas, No.

08-___ (July 31, 2008) (discussing factual basis for claim of prejudice); cf. United Mine

Workers v. Illinois State Bar Ass’n, 389 U.S. 217, 222 (1967) (“[T]he right[] . . . to

petition for a redress of grievances [is] among the most precious of the liberties

safeguarded by the Bill of Rights.”); Bounds v. Smith, 430 U.S. 817, 822 (1977) (there is

a constitutional right to “adequate, effective, and meaningful” access to process). As a

matter of law, therefore, his execution would violate the most fundamental objectives of

the due process clause.

That conclusion is reinforced by the character of the penalty Mr. Medellín faces.

See Gardner v. Florida, 430 U.S. 349, 357 (1977) (“[D]eath is a different kind of

punishment from any other which may be imposed in this country.”) (opinion of Stevens,

J.). It is thus “of vital importance to the defendant and to the community that any

decision to impose the death sentence be, and appear to be, based on reason rather than

caprice or emotion.” Gardner, 430 U.S. at 358; see also Barefoot v. Estelle, 463 U.S. 20

880, 888 (1983) (“[A] death sentence cannot begin to be carried out by the State while

substantial legal issues remain outstanding.”). To carry out a sentence of death when an

undisputed legal obligation, albeit one not yet effective on the domestic level, remains

unfulfilled would be antithetical to the very notion of lawful process.

While the circumstances of this case may be unique, those circumstances all

militate in favor of recognizing a right to relief here. First, it is no answer to the request

for relief that Mr. Medellín’s entitlement to review and reconsideration has not yet been

realized as a matter of U.S. domestic law. After all, the United States was by no means a

stranger to the processes by which the obligation that binds it arose, and the treaty-

making processes by which the United States undertook the obligation have

constitutional significance. Under the plain and unambiguous terms of the Supremacy

Clause, “treaties made . . . under the authority of the United States [are] the supreme law

of the land.” U.S. Const. art. VI, cl. 2; see also Medellin v. Texas, 128 S. Ct. at 1360 (“If

ICJ judgments were instead regarded as automatically enforceable domestic law, they

would be immediately and directly binding on state and federal courts pursuant to the

Supremacy Clause.”). Unless the Court means to write the plain and unambiguous

language of the Supremacy Clause out of the Constitution, the treaty relevant here—

Article 94(1) of the United Nations Charter—must be taken into account as part of the

due process analysis, even if it has not yet been executed as a matter of U.S. law. It

remains, as the Supremacy Clause tells us, an exercise of the constitutional authority of

the President and Senate and, as such, part of the supreme law of the land. 21

And it is precisely this previous exercise of constitutional treatymaking

authority—now manifest in the undisputed international legal obligation to provide

review and reconsideration—that distinguishes Mr. Medellín from an individual who

merely awaits, with no guarantee of success, a prospective conferral of rights by the

legislative process. To be sure, there can be no due process violation of a right Congress

has not yet created. But that is not the case here. The constitutionally designated house

of Congress has already acted, when the Senate advised on and consented to the Optional

Protocol to the Vienna Convention and the UN Charter and the President thereby ratified

them. By the action of the President and the Senate, the constitutionally designated

political branches, the treaty obligation to provide review and reconsideration already

exists, as a matter of international law. And the constitutionally designated domestic

lawmaking branches have already begun to act to convert that international law

obligation into a domestic right. In these circumstances, Mr. Medellín indisputably has a

right to remain alive until he can vindicate the right to the relief contemplated by this

country’s treaty commitment.

Second, it is no answer to the request for relief that it is uncertain whether

Congress will enact legislation to execute the treaty obligation to comply with Avena. To

be sure, this Court has construed Article 94(1) to preserve to Congress the “option of

noncompliance,” Medellin v. Texas, 128 S. Ct. at 1360, and even had the Court held

Article 94(1) to be self-executing with respect to the judicial right at issue here, Congress

would have retained, by virtue of the last-in-time rule, the authority to legislate a breach

of the treaty. See, e.g., Whitney v. Robertson, 124 U.S. 190, 194-95 (1888); Head Money 22

Cases (Edye v. Robertson),112 U.S. 580, 598-99 (1884). But this Court has long

instructed that, as a matter of law, it should decide cases on the presumption that

Congress intends the United States to comply with the treaty commitments it makes. Cf.

Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (in the

absence of clear instruction from Congress, courts should not construe statues in a

manner that would place the United States in breach of its treaty obligations). Any other

approach would be an insult to the constitutionally designated treatymakers: the

President, in negotiating a treaty, and the Senate, in providing its advice and consent,

would fulfill those roles under a cloud.

Here, the presumption that the United States will do what it promises to do is

reinforced by the President’s unequivocal determination that the United States should do

just that. See Br. for the United States as Amicus Curiae Supporting Petitioner at 8-9,

Medellin v. Texas, 128 S. Ct. 1346 (No. 06-984); Br. for the United States as Amicus

Curiae Supporting Respondent at 43, 45, Medellin v. Dretke, 544 U.S. 660 (No. 04-5928)

(President has determined it is in the “paramount interest of the United States” to achieve

“prompt compliance with the ICJ’s decision with respect to the 51 named individuals”).

The President is the sole organ of the United States in conducting its foreign affairs.

United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). While this

Court has held that he does not have the constitutional or statutory authority to execute

the Article 94(1) obligation here, his views on compliance are entitled to respect in this

Court, and they surely will carry weight in the Congress, as will this Court’s endorsement

of those views. See Medellin v. Texas, 128 S. Ct. at 1361, 1367 (“United States interests 23

in ensuring the reciprocal observance of the Vienna Convention, protecting relations with

foreign governments, and demonstrating commitment to the role of international law . . .

are plainly compelling”).

Third, it is no answer to the request for relief that Congress has not yet acted.

When Mr. Medellín first came to this Court, the only four Justices who reached the issue

concluded that Mr. Medellín arguably had an individual right to raise claims in court

under the Avena Judgment or the Vienna Convention itself. See Medellin v. Dretke, 544

U.S. 660, 687 (2005) (O’Connor, J., dissenting) (joined by Stevens, Souter, Breyer, JJ.);

id. at 693 (Breyer, J. dissenting) (joined by Stevens, J.). And, of course, while his case

was pending, the President asserted constitutional authority to execute the obligation.

Until this Court issued its decision in March, there was simply no reason for Congress to

believe it needed to act. Indeed, one of the indicia of a self-executing treaty is the failure

of Congress to take up the question of implementation. See, e.g.ESTATEMENT (THIRD )

OF FOREIGN RELATIONS LAW § 111 reporters’ notes 5 (“[I]f the Executive Branch has not

requested implementing legislation and Congress has not enacted such legislation, there

is a strong presumption that the treaty has been considered self-executing by the political

branches, and should be considered self-executing by courts.”). Here, prior to the

issuance of Medellin v. Texas, Congress had neither indicated that it needed to implement

the obligation or indicated that it did not intend the United States to comply.

Finally, it is no answer to the request for relief that it was Mexico, not Mr.

Medellín, who was the party that obtained the judgment in Avena whose implementation

Congress has now taken up. See Medellin v. Texas, 128 S. Ct. at 1360-61. There is no 24

dispute that the ICJ ordered that review and reconsideration of Mr. Medellin’s conviction

and sentence take place in the context of judicial proceedings in Mr. Medellin’s own case.

Avena, ¶¶ 141, 153(9). Hence, the United States cannot fulfill its obligation under Article

94(1) unless he receives review and reconsideration, and it is his life that hangs on the

outcome of that review and reconsideration. Confirming that point, the Avena

Implementation Act of 2008 that has now been introduced in Congress would give Mr.

Medellín the right to bring a claim for review and reconsideration. It follows that the due

process right not to be executed until Congress has had an adequate opportunity to

implement the Article 94(1) obligation to comply with Avena belongs to Mr. Medellín.

B. The Court Should Grant The Writ In Order To Preserve The
Constitutional Prerogative Of Congress To Determine Compliance
With The United States’s Obligation Under Article 94(1).

In Medellin v. Texas, this Court held that it was up to Congress to determine

whether the United States would comply with its commitment under Article 94(1) of the

United Nations Charter to comply with Avena. 128 S. Ct 1346, 1358, 1362 (2008). In

settling the constitutional process for enforcement of Article 94(1), this Court confirmed

that a treaty is “‘equivalent to an act of the legislature,’” and self-executing when it

‘operates of itself without the aid of any legislative provision.” Id. at 1356 (quoting

Foster v. Nelson, 26 U.S. (2 Pet.) 253, 315 (1829) (Marshall, C.J.), overruled on other

grounds, United States v. Percheman, 26 U.S. (7 Pet.) 51 (1833)). However, the Court

explained, some treaties are not fully realized at the time ratified, and in those cases,

Congress must take further action to execute the treaty by enacting implementing 25

legislation. Id. at 1356 (citing Whitney v. Robertson, 124 U.S. 190, 194 (1888)). Thus, in

those cases, Congress retains the option to choose not to comply—“always an option by

the political branches.” Id. This Court noted that it would be “particularly anomalous” to

leave Congress without that choice, “in light of the principle that ‘the conduct of the

foreign relations of our Government is committed by the Constitution to the Executive

and Legislative –‘the political’ – Departments.’” Id. at 1360 (quoting Oetjen v. Central

Leather Co., 246 U.S. 297, 302 (1918)).

In holding that it was up to Congress to determine the question of compliance

with Avena, the Court vindicated the position of Texas and several of its amici states.

For example, in Medellin v. Dretke, Texas took it for granted that the United States would

comply with Avena, but emphasized the importance of allowing the federal political

branches to determine how:

It is beyond cavil that . . . America should keep her word.
But the choice of how to do so, and how to respond to
alleged treaty violations, is left to the political branches of
government. . . . The President and Congress could seek to

pass legislation addressing the Avena decision[.]

Respondent’s Br. at 7, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928). Again, in

Medellin v. Texas, Texas stated: “To be sure, Texas recognizes the existence of an

international obligation to comply with the United States’s treaty commitments, including,

as appropriate, through changes to domestic law.” Respondent’s Br. at 12, Medellin v.

Texas, 128 S. Ct 1346 (2008) (No. 06-984). Nearly half the states supported that position

in this Court and the Texas Court of Criminal Appeals. See Br. of the States of Alabama,

Montana, Nevada and New Mexico as Amici Curiae in Support of Respondent at 16 n.8, 26

Ex parte Jose Ernesto Medellin, 223 S.W.3d 315 (No. AP-75,207) (“the proper way to

render the ICJ’s judgment binding on the state courts would be by an Act of Congress”);

Br. for the States of Alabama et al., as Amici Curiae, in Support of Respondent at 17-18,

Medellin v. Dretke, 544 U.S. 660 (No. 04-5928) (“As a delicate matter of foreign policy,

[the] task [of choosing how to comply with Avena] should be left to the Executive Branch

and Congress, at least in the first instance.”).

Having determined that Congress has the authority to determine compliance with

Avena, this Court should ensure that it has the opportunity to do so. The Court

interpreted the scheme of Article 94 of the United Nations Charter to preserve to the

political branches the “option of noncompliance”—specifically, their ability “to

determine whether and how to comply with an ICJ judgment.” Medellin v. Texas, 128 S.

Ct. at 1360. It need hardly be said that, if the option of noncompliance must be preserved

for decision by the political branches, so too should the option of compliance.

Yet Texas’s rush to execute Mr. Medellín threatens to deprive the political

branches of the very decision the Court reserved to them. There can be no dispute that, if

Texas executes Mr. Medellín without providing review and reconsideration in accord

with Avena, it will cause the United States to breach a treaty obligation that, in light of

the Court’s decision that the obligation was non-self-executing, Congress has already

begun to take steps to execute, that Congress has to this date given no indication that it

wishes the United States to breach, and with which the President has taken vigorous steps

to bring about compliance. That result would turn the constitutional design set out by this

Court in Medellin v. Texas on its head, and, at the same time, indulge the most cynical 27

view of the United States’s intentions when, by the considered actions of its President

and Senate, it enters into bilateral or multilateral treaty commitments with other nations.

C. The Court Should Grant The Writ In Order To Preserve The
United States’s Credibility In International Affairs Generally
And In Its Treatymaking Activity Specifically.

The point has been made so many times during the course of this and related

cases that it is important not to become inured to its significance: by constitutionally

prescribed processes, by constitutionally designated actors, acting on behalf of the

American people as a whole, the United States promised the international community that

it would abide by judgments of the ICJ in cases in which it was a party. U.N. Charter, art.

94(1); Statute of the International Court of Justice, art. 59. The United States fully

participated in the proceedings that led to the Avena judgment, and the President has told

the world that the United States must and will comply. Yet Texas, by rushing to

execution before Congress has had a chance to act, seeks to break the United States’s

promise. The damage that would be done to the United States’s credibility in world

affairs if Texas were permitted to do so would be incalculable. And by placing in doubt

the United States’s ability to comply with these treaty commitments, the decision would

compromise the ability of United States consular officials and citizens to rely on the

important protections embodied in the Vienna Convention.

The President shoulders the primary responsibility for our nation’s foreign

relations, Curtiss-Wright, 299 U.S. at 319, and he has already advised this Court of the

critical interests at stake. In its amicus brief submitted in Medellin v. Texas, the United 28

States cited two principal foreign policy considerations prompting the President’s 2005

decision to direct state courts to provide review and reconsideration: “the need for the

United States to be able to protect Americans abroad” and the need to “resolve a dispute

with a foreign government by determining how the United States will comply with a

decision reached after the completion of formal dispute-resolution procedures with that

foreign government.” Br. for the United States as Amicus Curiae Supporting Respondent

at 43, 45, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928). In light of these

objectives, the President considered it in the “paramount interest of the United States” to

achieve “prompt compliance with the ICJ’s decision with respect to the 51 named

individuals” including Mr. Medellín. Id. at 41; see also Br. for the United States as

Amicus Curiae Supporting Petitioner 8-9, Medellin v. Texas, 128 S. Ct. 1346 (No.06-984).

Every Member of this Court recognized that there is a vital public interest in

achieving compliance with the United States’s obligations under the Avena Judgment.

Writing for the majority, Chief Justice Roberts noted that

[I]n this case, the President seeks to vindicate United States interests in
ensuring the reciprocal observance of the Vienna Convention, protecting
relations with foreign governments, and demonstrating commitment to
the role of international law. These interests are plainly compelling.

Medellin v. Texas, 128 S. Ct. at 1367. Concurring in the judgment, Justice Stevens

agreed that “the costs of refusing to respect the ICJ’s judgment are significant.” Id. at

1375. And Justice Breyer, joined by Justices Souter and Ginsburg, observed in his

dissenting opinion that noncompliance with the Avena Judgment would exact a heavy toll

on the United States by “increase[ing] the likelihood of Security Council Avena 29

enforcement proceedings, [] worsening relations with our neighbor Mexico, []

precipitating actions by other nations putting at risk American citizens who have the

misfortune to be arrested while traveling abroad, or [] diminishing our Nation’s

reputation abroad as a result of our failure to follow the ‘rule of law’ principles that we

preach.” Id. at 1391.

In a submission to the Texas trial court prior to the hearing at which Mr. Medellín

urged that court to defer setting an execution date, Ambassador Jeffrey Davidow, who

holds the rank of Career Ambassador and served as ambassador for the United States in

the Administrations of Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and

George W. Bush, elaborated on those interests. Noting the reciprocal character of the

rights and obligations set forth in Article 36 of the Vienna Convention on Consular

Relations, which the Avena judgment interprets and applies, Ambassador Davidow

explained:

Diplomats function in the international arena based on a
basic reality: governments will respond in kind to the

treatment they receive. This notion of reciprocity is a
bedrock principle governing relations between nations, and
the United States’ good faith enforcement of its own treaty
obligations is the only means by which we can ensure other
nations will abide by their treaty obligations to us ….
Without our own strong enforcement of treaties, the United
States’ efforts in a vast array of contexts—economic,

political and commercial—would be significantly
undermined.

99a, ¶ 3; see also Br. of Former U.S. Diplomats as Amici Curiae in Support of Petitioner

at 5, 28, Medellin v. Texas, 128 S. Ct 1346 (No. 06-984); Br. of Former U.S. Diplomats

as Amici Curiae in Support of Petitioner at 5, 26, Medellin v. Dretke, 544 U.S. 660 (No. 30

04-5928). Hence, failure to comply with the Avena Judgment “would significantly

impair the ability of American diplomats to advance critical U.S. foreign policy.” 88a, ¶

3. The importance to the United States’s treaty partners of its compliance with its treaty

obligations is dramatically illustrated here by the submission in 2007 of amicus briefs

from sixty countries urging compliance in Medellin v. Texas. See Br. of Amici Curiae the

European Union and Members of the Int’l Community in Support of Petitioner, Medellin

v. Texas, 128 S. Ct. 1346 (No. 06-984) (forty-seven nations and the European Union); Br.

Amicus Curiae of the Government of the United Mexican States in Support of Petitioner

José Ernesto Medellín, Medellin v. Texas, 128 S. Ct. 1346 (No. 06-984) (Mexico); Br. of

Foreign Sovereigns as Amici Curiae in Support of Petitioner José Ernesto Medellín,

Medellin v. Texas, 128 S. Ct. 1346 (No. 06-984) (twelve nations); see also 101a-122a

(letters from Council of Europe and eleven nations to Texas officials).

From a perspective even closer to the ground, there can be no doubt, moreover,

that the consular rights afforded by the Vienna Convention are critical to the safety and

security of Americans who travel, live and work abroad: tourists, business travelers,

expatriates, foreign exchange students, members of the military, missionaries, Peace Corp

volunteers, U.S. diplomats, and countless others. Timely access to consular assistance is

crucially important whenever individuals face detention or prosecution under a foreign

and often unfamiliar legal system. The United States thus insists that other countries

grant Americans the right to prompt consular access. For example, in 2001, when a U.S.

5 U.S. consulates provide arrested Americans with a list of qualified local attorneys, explain local legal
procedures and the rights accorded to the accused, ensure contact with family and friends, protest any
discriminatory or abusive treatment, and monitor their well-being throughout their incarceration. See 31

Navy spy plane made an emergency landing in Chinese territory after colliding with a

Chinese jet, the State Department cited the Vienna Convention in demanding immediate

consular visits to the plane’s crew. See Press Briefing, U.S. State Department (Apr. 2,

2001), available at http://www.state.gov/r/pa/prs/dpb/2001/1889.htm. Chinese

authorities granted consular visits to the crew members, who were detained in China for

eleven days. During the tense standoff, the U.S. Ambassador to China emphasized that

these rights of immediate and unobstructed consular access to detained American citizens

are “the norms of international law,” China Grants U.S. Access to Spy Plane Crew, CNN,

Apr. 3, 2001, http://archives.cnn.com/2001/WORLD/asiapcf/east/04/03/china.aircollision,

while the President warned that the failure of the Chinese government “to react promptly

to our request is inconsistent with standard diplomatic practice, and with the expressed

desire of both our countries for better relations[,]” Statement by the President on

American Plane and Crew in China, The White House (Apr. 2, 2001), available at

http://www.whitehouse.gov/news/releases/2001/04/20010402-2.html.

For that reason, the business community has expressed grave concern about the

prospect of noncompliance with the Avena Judgment. In a letter to House Speaker Nancy

Pelosi urging Congress to pass legislation implementing Avena, Peter M. Robinson,

President and CEO of the United States Council for International Business (the United

States branch of the International Chamber of Commerce), observed:

The security of Americans doing business abroad is clearly
and directly at risk by U.S. noncompliance with its

U.S. Department of State, Assistance to U.S. Citizens Arrested Abroad,
http://travel.state.gov/travel/tips/emergencies/emergencies_1199.html. 32

obligations under the Vienna Convention on Consular
Relations. American citizens abroad are at times detained

by oppressive or undemocratic regimes, and access to the
American consulate is their lifeline. . . . While examples of
Americans being assisted in this way are too numerous to
list, suffice it to say that the overseas employees of the U.S.
business community need this vital safety net.

123a. Accordingly, Mr. Robinson wrote: “Failure to honor our universally recognized

treaty obligations will erode global confidence in the enforceability of the United States’

international commitments across a broad range of subjects, and will have a negative

impact upon its international business dealings.” 124a.

Key international observers have likewise emphasized the importance to the

United States of achieving compliance with Avena. For example, on July 17, 2008, the

current and nine past presidents of the American Society of International Law urged

Members of the Senate to act expeditiously on the pending legislation in order to ensure

compliance with international law:

[T]he United States is poised irreparably to violate the
Vienna Convention and a judgment of the ICJ. ..Such
violations would also damage the reputation of the United

States as a nation that respects its international legal
obligations and holds others to the same high standard.
Our ability to conclude agreements binding on other
countries facilitates nearly every aspect of our international
relations, including critically important issues relating to
cooperation in counter-terrorism efforts, trade, nuclear non-
proliferation, environmental protection, and international

investment.135a.

For another example, Professor Phillip Alston, the United Nations Human Rights

Council Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, recently 33

singled out the lack of compliance with the Avena Judgment as an issue of particular

concern:

The provision of consular rights seems to be treated as an

issue affecting only those foreign nationals currently on
death row in Texas. But precisely the same issue applies to
any American who travels to another country. One
legislator with whom I spoke noted that when he travels
overseas he is hugely reassured by the fact that he would
have the right of access to the US consulate if he was

arrested. The present refusal by Texas to provide review
undermines the role of the US in the international system,
and threatens the reciprocity between states with respect to
the rights of each others’ nationals.

128a. Professor Alston further noted that noncompliance with Avena threatens to

undermine other treaty regimes involving such varied subjects as trade, investment and

the environment. “Why,” he queried, “would foreign corporations, relying in part upon

treaty protections, invest in a state such as Alabama or Texas if they risked being told that

the treaty bound only the US government but was meaningless at the state level? This is

where the Medellin standoff leaves things.” 127a-128a.

In short, “[i]f the United States fails to keep its word to abide by the Avena

judgment, that action will not only reduce American standing in the world community,

but affirmatively place in jeopardy the lives of U.S. citizens traveling, working, and

living abroad.” 100a, ¶ 4. Those consequences will be suffered not only by Texas, but

by the Nation. As James Madison emphasized at the Constitutional Convention, “[a]

rupture with other powers is among the greatest of national calamities. It ought therefore

to be effectually provided that no part of a nation shall have it in its power to bring them

on the whole.” 1 THE R ECORDS OF THE FEDERAL C ONVENTION OF 1787, at 316 (Max 34

Farrand ed., rev. ed. 1996). If denying Mr. Medellín the review and reconsideration of

his conviction and sentence ordered by the ICJ is so important as possibly to justify the

serious harm to U.S. interests identified by the President, this Court, and many, many

others that would follow from that treaty breach , that judgment should be made by the

U.S. Congress, not Texas.

The United States’s word should not be so carelessly broken, nor its standing in

the international community so needlessly compromised. In order to vindicate the

constitutional allocation of authority to determine compliance with Avena that it has just

identified in Medellin v. Texas, and to allow the competent political actors to comply with

this country’s international commitments, this Court should grant the writ and stay the

execution.

CONCLUSION

For the foregoing reasons, this Court should grant a writ of certiorari or, in the

alternative, grant a writ of habeas corpus, or, in the further alternative, pursuant to the

accompanying motion, recall and stay its mandate in Medellin v. Texas, 128 S. Ct. 1346

(2008). In addition the Court should stay the execution of José Ernesto Medellín to allow

the competent political actors a reasonable opportunity to implement the international law

obligations of the United States reflected in the Judgment of the International Court of

Justice. 35

Respectfully submitted,

DONALD FRANCISD ONOVAN

(Counsel of Record)
CATHERINEM. AMIRFAR
JLL VANBERG
WILLIAMC.W EEKS

DEBEVOISE& PLIMPTONLLP
919 Third Avenue
New York, NY 10022-3916
(212) 909-6000

SANDRA L. ABCOCK
Clinical Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue

Chicago, Illinois 60611
(312) 503-0114

Attorneys for Petitioner

July 31, 2008 No. 08-_____
===============================================================

INT HE

Supreme Court of the United States

--------------------------------- ▯ ---------------------------------

INRE JOSÉERNESTO M EDELLÍ,
Petitioner,

--------------------------------- ▯ ---------------------------------

ON PETITION FOR ORIGINAL WRIT OF HABEAS CORPUS

--------------------------------- ▯ ---------------------------------

PETITION FOR WRIT OF HABEAS CORPUS

--------------------------------- ▯ ---------------------------------

SANDRA L. ABCOCK DONALD F RANCISDONOVAN
Clinical Professor of Law (Counsel of Record)
Northwestern University School of LaCATHERINEM. AMIRFAR

357 E. Chicago Avenue ILL VANBERG
Chicago, Illinois 60611 WILLIAMC.W EEKS
Tel: (312) 503-0114 DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022-3916

(212) 909-6000

Attorneys for Petitioner
=============================================================== i

CAPITAL CASE

QUESTIONS PRESENTED

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004
I.C.J. 12 (Mar. 31), the International Court of Justice determined that José Ernesto
Medellín and fifty other Mexican nationals under sentence of death in the United States
were entitled to receive judicial review and reconsideration of their convictions and
sentences in light of the violation of their rights under the Vienna Convention on

Consular Relations in their capital murder trials. In Medellín v. Texas, 128 S. Ct. 1346
(2008), this Court held that the United States is bound under Article 94(1) of the United
Nations Charter to comply with the Avena Judgment and settled the procedures by which,
as a matter of U.S. constitutional law, the international obligation to comply may be
given domestic effect. Specifically, this Court held that neither it nor the President had
the authority to execute the international obligation, which instead lies with the Congress.
In response to that ruling, legislation to implement Avena has been introduced in the U.S.

House of Representatives, yet the State of Texas, having scheduled Mr. Medellín’s
execution for August 5, 2008, has indicated that it intends to go forward with the
execution before Congress has had a reasonable opportunity to exercise its constitutional
prerogative to determine compliance.

This case presents the following questions:

1. Whether Mr. Medellín’s Fourteenth Amendment right not to be deprived of his
life without due process of law entitles him to remain alive until Congress has had
a reasonable opportunity to exercise its constitutional prerogative to implement
the right to judicial review and reconsideration under Avena and Other Mexican

Nationals, so that he can secure access to a remedy to which he is entitled by
virtue of a binding international legal obligation of the United States;

2. Whether the Court should grant a writ of habeas corpus to adjudicate Mr.
Medellín's claim on the merits, where he seeks relief pursuant to a binding
international legal obligation that the federal political branches seek to implement,
and where adequate relief cannot be obtained in any other form or from any other
court; and

3. Whether the Court should recall and stay its mandate in Medellín v. Texas, 128 S.
Ct. 1346, not to revisit the merits, but to allow Congress a reasonable opportunity
to implement legislation consistent with the Court’s decision in that case. ii

PARTIES

All parties to the proceedings below are named in the caption of the case. iii

TABLE OF CONTENTS

QUESTIONS PRESENTED................................................................................................ i

PARTIES............................................................................................................................ii

TABLE OF CONTENTS...................................................................................................iii

TABLE OF AUTHORITIES............................................................................................. iv

JURISDICTION ..................................................................................................................1

CONSTITUTIONAL, TREATY AND STATUTORY PROVISIONS
INVOLVED...............................................................................................................1

STATEMENT OF THE CASE............................................................................................1

A. Avena and Subsequent Proceedings.........................................................................1

B. Medellín v. Texas.....................................................................................................3

C. Scheduling of Execution Date .................................................................................5

D. Subsequent Proceedings Before the International Court of Justice.........................5

E. Introduction of Congressional Legislation...............................................................8
F. Denial of Federal Habeas Relief..............................................................................8

G. Decision of the Inter-American Commission on Human Rights.............................9

H. Further Political and Diplomatic Efforts to Effect Compliance with the
Avena Judgment.....................................................................................................12

I. The Proceedings Below.........................................................................................13

REASONS FOR GRANTING A WRIT OF HABEAS CORPUS....................................14

I. The Same Compelling Circumstances That Weigh In Favor of A Grant of A
Writ of Certiorari Weigh In Favor of a Grant of A Writ Under This Court’s
Original Habeas Powers...........................................................................................16

A. If A Writ Of Certiorari Is Unavailable, This Court Should Grant A Writ of
Habeas Corpus.......................................................................................................16

B. Adequate Relief Cannot Be Obtained In Any Other Form Or From Any
Other Court............................................................................................................18

CONCLUSION..................................................................................................................22 iv

TABLE OF AUTHORITIES

Federal Cases:

Breard v. Greene, 523 U.S. 371 (1998).........................................................................................21

Ex parte Grossman, 267 U.S. 87 (1925)........................................................................................17

Felker v. Turpin, 518 U.S. 651 (1996)...............................................................................17-18, 20

Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001).............................................................................21

McCleskey v. Zant, 499 U.S. 467 (1991).......................................................................................20

Medellin v. Dretke, 544 U.S. 660 (2005)............................................................................... passim

Medellin v. Quarterman, No. H-06-3688, 2008 U.S. Dist. LEXIS 55758 (S.D.
Tex. July 22, 2008)..................................................................................................................19

Medellin v. Texas, 128 S. Ct. 1346 (2008) ............................................................................ passim

Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006)......................................................................21

State Cases:

Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004)............................................................19

International Cases:

Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J.
12 (Mar. 31)..................................................................................................................... passim

Constitutional Provisions:

U.S. Const. art. II, § 2....................................................................................................................17

U.S. Const. art. VI, cl. 2.................................................................................................................20

Treaties and Federal Statutes:

28 U.S.C. § 2241.................................................................................................................... passim

28 U.S.C. § 2244................................................................................................................17, 19, 20

28 U.S.C. § 2255(e).......................................................................................................................21 v

United Nations Charter, opened for signature June 26, 1945 T.S. No. 993, 59 Stat.
1031.................................................................................................................................. passim

Other Authorities:

Supreme Court Rule 20.4(a)..........................................................................................................18 1

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 2241.

CONSTITUTIONAL, TREATY AND STATUTORY PROVISIONS INVOLVED

This case involves the following provisions, which are reproduced beginning at

page 1a in the Appendix.

STATEMENT OF THE CASE

A. Avena and Subsequent Proceedings

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.),

2004 I.C.J. 12 (Mar. 31) (“Avena”), the International Court of Justice (“ICJ”) determined

that Mr. Medellín and fifty other Mexican nationals under sentence of death in the United

States, whose rights to consular notification and access under the Vienna Convention on

Consular Relations had been violated in their capital murder trials, were entitled to

receive judicial review and reconsideration of their convictions and sentences in light of

the violations in their cases. On December 10, 2004, in response to Mr. Medellín’s

petition, this Court granted a writ of certiorari to decide whether, under the Supremacy

Clause of the Constitution, courts in the United States must give effect to the United

States’s treaty obligations to comply with the Judgment of the ICJ. Medellín v. Dretke,

543 U.S. 1032 (2004) (order granting writ of certiorari).

On February 28, 2005, before the case had been fully submitted, President George

W. Bush issued a written determination that the United States had a binding obligation

under international law to comply with Avena. Br. for U.S. as Amicus Curiae Supporting

Resp’t at App. 2, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928). He also 2

determined that, to achieve compliance, state courts should provide review and

reconsideration to the fifty-one Mexican nationals named in the Avena Judgment,

including Mr. Medellín, pursuant to the criteria set forth by the ICJ, notwithstanding any

state procedural rules that might otherwise bar review of the claim on the merits.

In deference to the President’s determination, Mr. Medellín filed a motion to stay

his case in this Court, requesting that the case be held in abeyance while he exhausted in

state court his claims based on Avena and the President’s determination, neither of which

had been issued at the time of his first state post-conviction petition.

On May 23, 2005, this Court dismissed the writ of certiorari as improvidently

granted, in part because of the prospect of relief in Texas state court and in part because

of potential obstacles to reaching the merits posed by the procedural posture of the case

as then before the Court. Medellín v. Dretke, 544 U.S. 660, 662 (2005) (per curiam).

Following this Court’s dismissal, Mr. Medellín pursued relief in the Texas Court

of Criminal Appeals, where he argued that the treaty obligation to abide by the Avena

decision and the President’s determination to comply each constituted binding federal

law that, by virtue of the Supremacy Clause of the Constitution, preempted any

inconsistent provisions of state law. On November 15, 2006, the Court of Criminal

Appeals dismissed Mr. Medellín’s application, holding that neither the Avena Judgment

nor the President’s determination constituted preemptive federal law and that Mr.

Medellín was procedurally barred from seeking relief on a subsequent habeas application.

Ex parte Medellín, 223 S.W.3d 315 (Tex. Crim. App. 2006). 3

On April 30, 2007, on Mr. Medellín’s petition, the Court granted a writ of

certiorari to determine whether courts in the United States or the President had the

authority to execute the United States’s obligation to comply with Avena. Medellin v.

Texas, 127 S. Ct. 2129 (U.S. 2007) (order granting writ of certiorari).

B. Medellín v. Texas

In Medellín v. Texas, 128 S. Ct. 1346 (2008), the Court held that under Article

94(1) of the United Nations Charter, a valid treaty of the United States, the United States

has a binding international obligation to comply with Avena by providing review and

reconsideration to Mr. Medellín and the other Mexican nationals subject to that judgment.

Specifically, the Court observed that “no one disputes” that the obligation to abide by the

Avena judgment, which “flows from the treaties through which the United States

submitted to ICJ jurisdiction with respect to Vienna Convention disputes—constitutes an

international law obligation on the part of the United States.” Id. at 1356. The Court

also expressly noted its agreement with the President as to the importance of United

States’s compliance with that obligation. Id. at 1367.

The Court held, however, that that international obligation had not yet been

validly executed as a matter of U.S. domestic law. First, courts are not empowered to

automatically enforce ICJ decisions as domestic law because the “sensitive foreign policy

decisions” of whether and how to comply are reserved for the he political branches. Id. at

1360. Second, the “array of political and diplomatic means available [to the President] to

enforce international obligations” does not include the power to “unilaterally convert[] a 4

non-self-executing treaty into a self-executing one.” Id. at 1368. Hence, “while the ICJ’s

judgment in Avena creates an international law obligation on the part of the United States,

it does not of its own force constitute binding federal law that pre-empts state restrictions

on the filing of successive habeas petitions.” Id. at 1367. Instead, an additional step by

the political branches is necessary, including action by Congress to pass implementing

legislation, id. at 1369, or by the President “by some other means, so long as they are

consistent with the Constitution,” id. at 1371.

Concurring in the judgment, Justice Stevens also noted that the United States’s

international obligation to provide review and reconsideration under the Avena Judgment

was undisputed. Id. at 1374. He urged action by Texas to “shoulder the primary

responsibility for protecting the honor and integrity of the Nation,” id. at 1374,

particularly where “the costs of refusing to respect the ICJ’s judgment are significant,” id.

at 1375.

Justice Breyer, joined by Justices Souter and Ginsburg, dissented, stating that the

Supremacy Clause of the U.S. Constitution required that the state courts comply with

Avena, since “the treaty obligations, and hence the judgment, resting as it does upon the

consent of the United States to the ICJ’s jurisdiction, bind[s] the courts no less than

would ‘an act of the [federal] legislature.’” Id. at 1376 (internal cites omitted). Like the

majority, Justice Breyer recognized that noncompliance would exact a heavy toll on the

United States. Id. at 1391. 5

C. Scheduling of Execution Date

Almost immediately following this Court’s decision, Texas state prosecutors

sought an execution date for Mr. Medellín. At a hearing before the Texas trial court on

May 5, 2008, Mr. Medellín requested that the court defer scheduling an execution date in

order to allow the national and state legislatures time to implement the Avena Judgment,

as this Court’s decision contemplated. Texas State Senator Rodney Ellis wrote to the

court to request that it defer setting a date in light of his intention to introduce legislation

by which Texas would comply with Avena as soon as the Texas Legislature reconvened

in January 2009. 15a-16a. On May 2, 2008, Ambassador Jeffrey Davidow, who holds

the rank of Career Ambassador (the highest rank available to diplomats) and served as an

ambassador for the United States in the administrations of Presidents Ronald Reagan,

George H.W. Bush, Bill Clinton, and George W. Bush, submitted a declaration

addressing the negative ramifications for U.S. foreign relations, including for the

protection of Americans abroad. The court declined to hear evidence and instead

scheduled Mr. Medellín’s execution for the first date available under state law. See 136a.

Hence, Mr. Medellín is scheduled to die by lethal injection on August 5, 2008.

D. Subsequent Proceedings Before the International Court of Justice

On June 5, 2008, in light of the action by Texas to execute Mr. Medellín without

having provided him review and reconsideration and the failure as of that date by the

United States effectively to implement the judgment within its domestic legal system,

Mexico instituted new proceedings in the International Court of Justice by filing a 6

Request for Interpretation of the Avena Judgment. See Application Instituting

Proceedings, Request for Interpretation of the Judgment of 31 March 2004 in the Case

Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), June 5, 2008. Mexico 1

asked the ICJ to declare that the United States has an obligation to use any and all means

necessary to provide that review before any execution is carried out. In conjunction with

its Request for Interpretation, Mexico also asked the ICJ to indicate provisional measures

with respect to Mr. Medellín and four other Mexican nationals named in the Avena

2
Judgment who face imminent execution in Texas. Mexico’s Request for Interpretation

of the Avena Judgment opens a new case before the ICJ and is currently pending review.

The ICJ held oral proceedings on the request for provisional measures on June 19

and 20, 2008. At argument, the Legal Adviser to the Secretary of State confirmed “that

the United States takes its international law obligation to comply with the Avena

Judgment seriously” and agreed that Avena requires the provision of review and

reconsideration prior to the imposition of any death sentence. See 90a; 92a; 93a.

On June 16, 2008, the ICJ rejected the United States’s request to dismiss the case

and granted Mexico’s request for provisional measures, directing the United States to

“take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas [and

four other Mexican nationals] are not executed pending judgment on the Request for

1 The parties’ written and oral pleadings and the judgment, orders and press releases of the International
Court of Justice in respect of the Request for Interpretation are available at http://www.icj-
cij.org/docket/index.php?p1=3&p2=1&code=&case=139&k=11 (last visited July 30, 2008).

2 The four other Mexican nationals subject to the request for provisional measures have not received

execution dates but are eligible under state law to have dates scheduled. 7

interpretation submitted by the United Mexican States, unless and until these five

Mexican nationals receive review and reconsideration consistent with paragraphs 138 to

141 of the [Avena] Judgment.” 38a, ¶ 80(a). In particular, the Court noted

that the United States has recognized that, were any of the
Mexican nationals named in the request for the indication

of provisional measures to be executed without the
necessary review and reconsideration required under the
Avena Judgment, that would constitute a violation of
United States obligations under international law; … in
particular, the Agent of the United States declared before
the ICJ that “[t]o carry out Mr. Medellín’s sentence without
affording him the necessary review and reconsideration

obviously would be inconsistent with the Avena
Judgment[.]”

37a, ¶ 76. The Court further noted that “the Agent of the United States acknowledged

before the Court that ‘the United States would be responsible, clearly, under the principle

of State responsibility for the internationally wrongful actions of [state] officials[.]’” Id.

at ¶ 77. Nonetheless, commenting on reports of the ICJ’s Order in the press, Texas

Governor Perry’s office stated: “The world court has no standing in Texas and Texas is

not bound by a ruling or edict from a foreign court.” Allan Turner & Rosanna Ruiz,

Texas to World Court: Executions Are Still On, Houston Chron., July 17, 2008, at A1.

The submission of the United States in response to Mexico’s Request for Interpretation is

due on August 29, 2008. The case has been set on an expedited schedule and a decision

is likely to issue this year. 8

E. Introduction of Congressional Legislation

On July 14, 2008, following this Court’s decision in Medellín v. Texas, Members

of the House of Representatives introduced legislation to give the Avena Judgment

domestic legal effect. The “Avena Case Implementation Act of 2008” grants foreign

nationals such as Mr. Medellín a right to judicial review of their convictions and

sentences in light of Vienna Convention violations in their cases. 5a-6a. The proposed

bill specifically authorizes courts to provide “any relief required to remedy the harm done

by the violation [of rights under Article 36 of the Vienna Convention], including the

vitiation of the conviction or sentence where appropriate.” 6a, § 2. The bill was

introduced by Howard L. Berman, Chairman of the Committee for Foreign Affairs and

Vice Chairman of the Judiciary Committee, and referred to the Judiciary Committee for

consideration. Since that time, the Chairman of that Committee, John Conyers, Jr., and

Committee Members Zoe Lofgren and William D. Delahunt have joined as co-sponsors

of the bill.

The bill is now under review. On June 19, 2008, before the International Court of

Justice, the United States stated that “[g]iven the short legislative calendar for our

Congress this year, it [will] not be possible for both houses of our Congress to pass

legislation” implementing the Avena decision. 88a, ¶ 26.

F. Denial of Federal Habeas Relief

On November 21, 2006, to satisfy the applicable statute of limitations while his

first subsequent habeas application was pending in the Texas Court of Criminal Appeals, 9

Mr. Medellín filed a habeas petition in the U.S. District Court for the Southern District of

Texas, raising claims related to the enforceability of the Avena Judgment as a matter of

applicable treaties and the President’s 2005 determination to comply. After this Court

granted a writ of certiorari to review the denial of Mr. Medellín’s first subsequent

application, the district court stayed and administratively closed Mr. Medellín’s case. On

July 22, 2008, the court reopened proceedings for the limited purpose of determining

jurisdiction over Mr. Medellín’s petition, and denied relief. Medellin v. Quarterman, No.

H-06-3688, 2008 U.S. Dist. LEXIS 55758 (S.D. Tex. July 22, 2008). The court

concluded that the federal habeas statute’s limitation on successive petitions prevented it

from considering Mr. Medellín’s petition on the merits without prior authorization from

the Court of Appeals. Id. at *7.

G. Decision of the Inter-American Commission on Human Rights

On November 21, 2006, Mr. Medellín filed a petition before the Inter-American

Commission on Human Rights raising the violation of his consular rights as well as

several violations of the 1948 Declaration of the Rights and Duties of Man (“American

Declaration”). The Inter-American Commission is the principal human rights organ of

the Organization of American States (“OAS”) and is empowered to consider and evaluate

the merits of human rights violations raised by individuals from any OAS member state.

See Inter-American Commission on Human Rights, What is the IACHR?, at

http://www.cidh.oas.org/what.htm; see also Thomas Buergenthal, International Human 10

Rights in a Nutshell 174, 179, 181-82 (2d ed. 1995). As a member of the OAS, the

3
United States has recognized the Commission’s competence to consider such petitions.

On December 6, 2006, the Commission issued precautionary measures—

analogous to a temporary injunction and similar to the provisional measures ordered by

the ICJ—calling upon the United States to take all measures necessary to preserve Mr.

Medellín’s life pending the Commission’s investigation of the allegations raised in his

petition. 74a-75a. After Mr. Medellín was scheduled for execution, the Commission

reiterated to the United States the precautionary measures it adopted in favor of Mr.

Medellín in 2006 and reminded the United States of its request that Mr. Medellín’s life be

preserved pending the investigation of his petition. 76a; see also 77a-79a.

Both Mr. Medellín and the United States filed written submissions and made oral

arguments to the Commission at a hearing conducted on March 7, 2008, at the

Commission headquarters in Washington, D.C. The Commission also considered

extensive documentary evidence, including many of the documents submitted to the court

below. On July 24, 2008, after reviewing the legal arguments of both parties and the

facts submitted in support of Mr. Medellín’s claims for relief, the Commission issued a

3 The United States has signed and ratified the Charter of the Organization of American States (“OAS
Charter”), Apr. 30, 1948, 2 U.S.T. 2394, as well as the Protocol of Buenos Aires that amended the
OAS Charter and established the Commission as a principal organ through which the OAS would
accomplish its purposes. Protocol of Buenos Aires, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No. 6847.
As ratified treaties of the United States, both instruments apply with equal force and supremacy to all
states, including Texas. U.S. Const. art. VI, cl. 2. The amended OAS Charter specifically provided

that “[t]here shall be an Inter-American Commission on Human Rights, whose principal function shall
be to promote the observance and protection of human rights and to serve as a consultative organ of
the Organization in these matters.” OAS Charter, art. 106. Under Article 145, the Inter-American
Commission is given the responsibility to “keep vigilance over the observance of human rights.” Id.,
art. 145. 11

preliminary report concluding, in pertinent part, that Mr. Medellín was prejudiced by the

violation of his rights to consular notification and assistance. Specifically, the

Commission found:

It is apparent from the record before the Commission that,
following [Mr.] Medellin[’s] conviction and sentencing,

consular officials were instrumental in gathering significant
evidence concerning [his] character and background. This
evidence, including information relating to [his] family life
as well as expert psychological reports, could have had a
decisive impact upon the jury’s evaluation of aggravating
and mitigating factors in [his] case[]. In the Commission’s
view, this information was clearly relevant to the jury’s

determination as to whether the death penalty was the
appropriate punishment in light of [his] particular
circumstances and those of the offense.

65a, ¶ 128. The Commission concluded that the United States’s obligation under Article

36(1) of the Vienna Convention to inform Mr. Medellín of his right to consular

notification and assistance constituted a fundamental component of the due process

standards to which he was entitled under the American Declaration, and that the United

States’s failure to respect and ensure this obligation deprived him of a criminal process

that satisfied the minimum standards of due process and a fair trial required by the

Declaration. 66a, ¶ 132.

As to remedies, the Commission recommended, among other things, that the

United States vacate Mr. Medellín’s death sentence and provide him with “an effective

remedy, which includes a new trial in accordance with the equality, due process and fair

trial protections prescribed under . . . the American Declaration, including the right to

competent legal representation.” 72a, ¶ 160. The Commission also reiterated its requests 12

of December 6, 2006, and January 30, 2007, that the United States take precautionary

measures to preserve Mr. Medellín’s life pending the implementation of the

4
Commission’s recommendations in the matter. 71a, ¶ 159.

H. Further Political and Diplomatic Efforts to Effect Compliance with
the Avena Judgment.

Since this Court issued its decision in Medellin v. Texas, the governments of

Mexico and the United States have resumed their efforts to achieve compliance with the

Avena Judgment. On June 17, 2008, Secretary of State Condoleezza Rice and Attorney

General Michael B. Mukasey asked for Texas’s help in complying with the Avena

Judgment. In a joint letter to Governor Rick Perry, the Secretary of State and Attorney

General stated:

The United States attaches great importance to complying with its
obligations under international law . . . . We continue to seek a
practical and timely way to carry out our nation’s international
legal obligation [under Avena], a goal that the United States needs

the assistance of Texas to achieve. In this connection, we
respectfully request that Texas take the steps necessary to give
effect to the Avena decision with respect to the convictions and
sentences addressed therein.

80a-81a. On July 18, 2008, Governor Perry responded, acknowledging the “concerns

from a federal standpoint about the importance of international law” and stating his belief

that the “international obligation” to comply with Avena is properly a matter within the

4 The Commission has not yet issued its final report, and will not do so until the United States has had
an opportunity to respond to the Commission’s findings. See Rule 43.2, Rules of Procedure of the
Inter-American Commission on Human Rights, available at http://www.cidh.org/Basicos/English/
Basic18.Rules%20of%20Procedure%20of%20the%20Commission.htm. Until the United States takes
steps to implement the Commission’s recommendations, precautionary measures remain in effect. 13

province of the federal executive branch and Congress. 82a. Governor Perry further

stated that he was “advised” that the “State of Texas will ask the reviewing court [in

federal habeas proceedings] to address the claim on the merits.” Id.

On July 28, 2008, Mexico’s Secretary of Foreign Affairs, Patricia Espinosa

Cantellano, also sent a letter to Governor Perry and asked him to suspend Mr. Medellín’s

execution and to help ensure that Mr. Medellín is afforded the judicial hearing to which

he is entitled as a result of the Avena Judgment. 84a-85a.

I. The Proceedings Below

On July 28, 2008, after his federal habeas petition was dismissed, Mr. Medellín

filed a second subsequent application for a writ of habeas corpus in the Texas Court of

Criminal Appeals, and along with it, an application for a stay of execution. Mr. Medellín

argued that his constitutional rights to life and due process of the law entitle him to

reasonable access to a remedy of judicial process that the United States is bound as a

matter of international law to provide, and that therefore to execute Mr. Medellín before

the competent political actors have had a reasonable opportunity to convert the Nation’s

international law obligation under the Avena Judgment into a justiciable legal right would

amount to an unconstitutional deprivation of his right to life without due process of law.

In addition, Mr. Medellín argued that his execution without having received the required

review and reconsideration would impinge upon the constitutional authority of Congress,

confirmed by this Court, to give effect to the United States’s obligation under Article

94(1) of the United Nations Charter to comply with the Avena Judgment. In his stay 14

application, Mr. Medellín asked the Court to delay his execution to allow the competent

political authorities a reasonable opportunity to implement the Judgment.

Although the Texas Court of Criminal Appeals has not yet ruled on Mr.

Medellín’s applications, his scheduled execution in six short days from now compels him

to file in the event the CCA denies relief.

REASONS FOR GRANTING A WRIT OF HABEAS CORPUS

Mr. Medellín is scheduled to be executed by lethal injection on August 5, 2008,

although he has yet to receive the review and reconsideration of his conviction and

sentence mandated by the Avena Judgment of the International Court of Justice. In

Medellin v. Texas, 128 S. Ct. 1346 (2008), this Court confirmed that the United States is

bound as a matter of international law to comply with the Avena Judgment, and clarified

that it falls to Congress to determine whether and how to give the Judgment domestic

legal effect.

No one—not this Court, not the Executive, not Congress, not Texas—disputes the

United States’s “plainly compelling” interest in complying with the international

obligation reflected in Avena. In the four months since this Court’s decision in Medellín

v. Texas, federal and state actors have been engaged in unprecedented efforts to find an

alternative and expeditious means of implementing the United States’s obligations under

the Avena Judgment. The House of Representatives has introduced legislation, the

Secretary of State and Attorney General have called upon Texas to work with the federal

government to avoid a breach of its treaty commitments, a Texas senator has promised to

introduce legislation to implement Avena as soon as the Texas Legislature reconvenes, 15

and leaders of the diplomatic and business communities have warned that Mr. Medellín’s

execution could have grave consequences for Americans abroad.

Despite this extraordinary and unique set of circumstances, Texas has set Mr.

Medellín’s execution for the earliest possible date under Texas law, and proceeds

implacably towards execution on August 5. If allowed to proceed, Texas will

simultaneously deprive Mr. Medellín of reasonable access to a remedy required under a

binding international legal obligation and place the United States in irreparable breach of

its treaty obligations. Under these unique circumstances, Mr. Medellín’s execution

would violate his constitutionally protected right not to be deprived of his life without

due process of law. And by placing the United States in irreparable breach of its treaty

commitments before Congress and the federal Executive can act to compel compliance,

Texas effectively will usurp the institutional prerogative of the federal political

branches—advocated by Texas in Medellin v. Texas and confirmed by this Court—to

determine whether and how to give domestic legal effect to the treaty obligations of the

Nation. This Court must not allow Texas to subvert Mr. Medellín’s constitutional rights

and the compelling institutional interests of Congress and the Executive in a race to

execution, particularly given the overwhelming public interest in achieving compliance

with the Avena Judgment.

In view of the exceptional circumstances of this case, Mr. Medellín respectfully

seeks three alternative forms of relief from this Court: (1) a writ of certiorari in the event

that the Texas Court of Criminal Appeals dismisses his pending applications for habeas

relief and a stay of execution; or (2) a writ of habeas corpus; or (3) recall of this Court’s 16

mandate in Medellin v. Texas, 128 S. Ct. 1346 (2008), for the purpose of preserving

Congress’s ability to bring the nation into compliance with the Avena Judgment. Finally,

in connection with whichever form of relief the Court may deem appropriate to grant, Mr.

Medellín asks this Court to grant his motion for a stay of his execution for such time as is

necessary to permit the competent political actors a reasonable opportunity to act to

comply consistent with this Court’s decision in Medellin v. Texas.

I. The Same Compelling Circumstances That Weigh In Favor of A Grant of A
Writ of Certiorari Weigh In Favor of a Grant of A Writ Under This Court’s
Original Habeas Powers.

The Court may act to prevent Mr. Medellín’s execution in violation of the Avena

Judgment by the grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2241, which

empowers this Court to grant the Great Writ where a prisoner is “in custody in violation

of the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).

By exercising its discretion in the form of an extraordinary writ, this Court would

preserve its ability, in truly exceptional circumstances, to prevent the incalculable harm

that would ensue from a breach of the nation’s treaty commitments, to preserve the

undisputed right of Congress to take action, and to protect Mr. Medellín’s right not to be

deprived of his life without due process of law.

A. If A Writ Of Certiorari Is Unavailable, This Court Should Grant A
Writ of Habeas Corpus.

Although the extraordinary writs are a rare form of relief, sparingly exercised in

the discretion of the Court, the circumstances of this case plainly are exceptional—indeed

unprecedented, unlikely to repeat themselves, and of the highest possible significance, in 17

terms both of the caliber of interests implicated and the detriment that will befall the

institutions of federal government, the American public, and Mr. Medellín himself if his

case is permitted to fall into a black hole in the constitutional design.

Indeed, the circumstances here are in some respects reminiscent of—yet easily

more extraordinary than—the cases where this Court has granted a writ of habeas corpus

in an original action. For example, in Ex parte Grossman, 267 U.S. 87 (1925), the

petitioner had been sentenced to a single year of imprisonment for the unlawful sale of

liquor. The President issued a pardon; the district court committed the petitioner to serve

the sentence notwithstanding the pardon; and this Court intervened to vindicate the

authority of the President to pardon criminal contempt. Id. at 107-08. There, the stakes

were plainly less dramatic where the sentence was minor and there was no claim that the

petitioner’s case had broader implications, yet the Court intervened to make effective the

President’s constitutional power to issue pardons. See U.S. Const. art. II, § 2. The

intervention of this Court here would not only protect Congress’s constitutional

prerogative to enact legislation to give effect to a non-self-executing treaty commitment

of the United States, but also the right of the petitioner not to be deprived of a remedy

that the competent political actors seek to provide him. See Part I above.

This Court’s jurisdiction under 28 U.S.C. § 2241 to entertain and grant original

writs of habeas corpus was not repealed by the amendments to 28 U.S.C. §§2244 and

2254 in the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”). Felker v.

Turpin, 518 U.S. 651, 654 (1996) (“[AEDPA] does not preclude this Court from 18

entertaining an application for habeas corpus relief[.]”); see also id. at 658 (AEDPA

“does not deprive this Court of jurisdiction to entertain original habeas petitions.”).

B. Adequate Relief Cannot Be Obtained In Any Other Form Or From
Any Other Court.

The Court has made it clear that its exercise of discretion to issue a writ of habeas

requires that the petitioner also “show that adequate relief cannot be obtained in any other

form or from any other court. These writs are rarely granted.” Id. at 665 (quoting Sup.

Ct. R. 20.4(a)). This case meets this demanding test.

As the United States has stated, Mr. Medellín has never received review and

reconsideration in conformity with the guidelines set forth in Avena. 98a, lines 8-11

(“[The previous holding] does not give full and independent weight to the treaty violation,

which is what Avena requires and which is what the President has directed.”); see also

Medellin v. Texas, 128 S. Ct. at 1389-90 (Breyer, J., dissenting) (“While Texas has

already considered [whether the police failure to inform Medellin of his Vienna

Convention rights prejudiced Medellin], it did not consider fully, for example, whether

appointed counsel’s coterminous 6-month suspension from the practice of the law

‘caused actual prejudice to the defendant’—prejudice that would not have existed had

Medellin known he could contact his consul and thereby find a different lawyer.”).

While the Governor of Texas has conveyed his understanding that the Texas Attorney

General’s office will now seek merits review of all Vienna Convention claims presented

in federal court by Mexican nationals subject to the Avena Judgment who have never

before received such review, he has not explicitly acknowledged that that process must 19

represent prospective, de novo review, on a full record presented at an evidentiary

hearing, and in light of the correct legal standard, all in accord with the ICJ’s rulings in

Avena. In any event, Mr. Medellín petitions this Court for a writ of habeas corpus

because he anticipates that the Court of Appeals will hold that he is effectively without

any federal forum in which he can benefit from Texas’s newly announced position.

Petitioner files this petition in anticipation of the prospect that he will be unable to

5
obtain relief from any other court. He has applied for relief from the Texas state courts,

and that application remains pending. See Second Subsequent Application for Post-

Conviction Writ of Habeas Corpus. Further, while Mr. Medellín has not yet filed in the

Court of Appeals because of the Texas two-forum rule, he anticipates that if it becomes

necessary to file in that Court, the Court will hold that he is unable to meet the successive

petition requirements of 28 U.S.C. § 2244(b). The District Court has already held that he

cannot meet those literal standards and therefore cannot obtain leave to file a § 2254

petition in the lower federal courts. Medellin v. Quarterman, No. H-06-3688, 2008 U.S.

Dist. LEXIS 55758, at *7 (S.D. Tex. July 22, 2008). Even if the Court of Appeals were

to accept his argument that his present claim arises from the Avena Judgment, a decision

that came down after he had already presented his Vienna Convention claim in his initial

5
Petitioner is also seeking to obtain relief from this Court in every “other form” that he believes to be
arguably available, including a petition for a writ of certiorari for review of the judgment of the Texas
Court of Criminal Appeals and a motion to recall and stay the Court’s mandate in Medellin v. Texas.

6 See Ex parte Soffar, 143 S.W.3d 804, 805-06 (Tex. Crim. App. 2004) (Texas state courts defer action
on causes properly within their jurisdiction “until the courts of another sovereignty with concurrent
powers, and already cognizant of litigation, have had an opportunity to pass upon the matter.”). Given
the imminent execution date, Mr. Medellin will lodge his papers inthe Court of Appeals, for filing if
the Court of Criminal Appeals does not grant relief. 20

application, the Court of Appeals could hold that it is bound by the wording of the

successor provision’s requirements of “a new rule of constitutional law, made retroactive

to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2244(b)(2); Medellin v.

Dretke, 544 U.S. at 666 (2005) (“A certificate of appealability may be granted only

where there is ‘a substantial showing of the denial of a constitutional right.’ To obtain

the necessary certificate of appealability to proceed in the Court of Appeals, Medellin

must demonstrate that his allegation of a treaty violation could satisfy this standard.”)

7
(Court's emphasis)). This Court would not be so bound.

The exceptional circumstances of this case satisfy the equitable principles

embodied in the statutory standards. Mr. Medellin has not abused the writ by holding

back his Vienna Convention claim, having raised the claim in his first state and federal

habeas petition. His claim has now been transformed by the Avena judgment, which,

although not announcing a rule of constitutional law, interprets a treaty made under the

authority of the United States which is also part of the Supreme Law of the Land under

Article VI, clause 2 of the Constitution. That decision was made retroactive—and,

indeed, directly applicable to petitioner’s own case—by a court possessing authority with

7 Just as the Court’s jurisdiction under 28 U.S.C. § 2241 was not repealed by AEDPA, the limitations on
second or successive petitions imposed by AEDPA similarly do not apply to original writ applications
made under § 2241. Rather, those limitations apply specifically and exclusively to “claim[s] presented
in a second or successive habeas corpus application under section 2254.” 28 U.S.C. §§ 2244(b)(1)-(2).
However, the Court has held that the statutory limitations reflect “‘a complex and evolving body of
equitable principles informed and controlled by historical usage, statutory developments, and judicial
decisions,’” and hence should “certainly inform our consideration of original habeas petitions.” Felker
v. Turpin, 518 U.S. at 663-64 (quotingMcCleskey v. Zant, 499 U.S. 467, 489 (1991)). Although the
Court’s decisions under § 2241 are informed by those principles, its jurisdiction is not limited by them;
that jurisdiction extends to any case in which “a prisoner . . . is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See Felker v. Turpin,

518 U.S. at 659 n.2. 21

regard to the interpretation of this treaty. Even if in the process of becoming judicially

enforceable, that decision established new predicates for the claim that were not

previously available to petitioner, those predicates are, at a minimum, determinations by

a court whose judgments on the subject are entitled to “respectful consideration,” see

Medellin v. Texas, 128 S. Ct. at 1361 n.9 (quoting Breard v. Greene, 523 U.S. 371, 375

(1998); Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2683 (2006), especially when

rendered in a full and fair proceeding in which the United States fully participated. 8

Further, the Inter-American Commission has now determined, after reviewing

evidence that would have to be considered in the course of the review and reconsideration

ordered by the ICJ but has never been considered on the merits in a U.S. court, that the

Vienna Convention violation caused Mr. Medellin prejudice, in large part by preventing

Mexico from arranging for his legal representation and ensuring he had an adequate

defense. See 65a, ¶ 128. The Commission recommended that the United States vacate

Mr. Medellín’s death sentence and provide him with a new trial. Pet. App. 65a, ¶ 128;

72a, ¶ 160. While Mr. Medellin should not have to show that he would prevail in the

course of review and reconsideration in order to vindicate his entitlement to receive it, the

8 In Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001), the United States Court of Appeals for the Seventh
Circuit allowed a habeas petition raising a treaty claim to be brought under § 2241, although the
petitioner could not surmount the restrictions on successive § 2255 petitions. The court in Garza held
that because the petitioner’s treaty claim had not ripened until the announcement of the decision of the
international tribunal on which it was based, the § 2255 remedy was “inadequate or ineffective to test
the legality of [his] detention,” making his petition “properly cognizable under § 2241.” Id. at 921
(quoting 28 U.S.C. § 2255(e)). InGarza, the Court of Appeals also noted that, because the legal
predicate for the treaty claim did not exist at the time of petitioner’s earlier habeas filings, it was
arguable that the petition before it was not “second or successive” at all. Id. at 923-24 (citing Stewart

v. Martinez-Villareal, 523 U.S. 637, 642-45 (1998)). 22

Inter-American Commission’s determination adds weight to the factors counseling in

favor of granting the writ.

Thus, to the extent that this Court’s exercise of its equitable discretion under §

2244 is informed by the terms of § 2244, this case qualifies for its consideration. But

that is only one aspect of the exceptional circumstance this case presents. Far more

exceptional—indeed, unique in this Court’s history—are the circumstances set forth

above in support of the petition for a writ of certiorari: a court of competent jurisdiction,

vested by treaty made by the President and ratified by the Senate with the authority to

resolve disputes regarding the interpretation and application of that treaty, has found a

violation of petitioner’s rights and required a judicial remedy that appears to be available

in no other forum.

CONCLUSION

For the foregoing reasons, this Court should grant a writ of certiorari or, in the

alternative, grant a writ of habeas corpus, or, in the further alternative, pursuant to the

accompanying motion, recall and stay its mandate in Medellin v. Texas, 128 S. Ct. 1346

(2008). In addition the Court should stay the execution of José Ernesto Medellín to allow

the competent political actors a reasonable opportunity to implement the international law

obligations of the United States reflected in the Avena Judgment of the International

Court of Justice. 23

Respectfully submitted,

DONALD FRANCISD ONOVAN

(Counsel of Record)
CATHERINEM. AMIRFAR
JLL VANBERG
WILLIAMC.W EEKS

DEBEVOISE& PLIMPTONLLP
919 Third Avenue
New York, NY 10022-3916
(212) 909-6000

SANDRA L. ABCOCK
Clinical Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue

Chicago, Illinois 60611
(312) 503-0114

Attorneys for Petitioner

July 31, 2008 No. 08-___
===============================================================

I THE

Supreme Court of the United States

--------------------------------- ▯ ---------------------------------

JOSÉERNESTO M EDELLÍ,
Petitioner,

vs.

T HESTATE OFT EXAS,
Respondent.

--------------------------------- ▯ ---------------------------------

MOTION TO RECALL AND STAY THE COURT’S
MANDATE IN MEDELLIN V. TEXAS

--------------------------------- ▯ ---------------------------------

SANDRA L. BABCOCK D ONALD FRANCISD ONOVAN
Clinical Professor of Law (Counsel of Record)
Northwestern University School of LaCATHERINE M. AMIRFAR
357 E. Chicago Avenue JILL VANBERG
Chicago, Illinois 60611 W ILLIAMC.W EEKS

(312) 503-0114 DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022-3916
(212) 909-6000

Attorneys for Petitioner
=============================================================== i

TABLE OF AUTHORITIES

Federal Cases:

Buckley v. Valeo, 424 U.S. 1 (1976)....................................................................................2

Cahill v. New York, New Haven & Hartford Railroad Co., 351 U.S. 183 (1956)...............2

Calderon v. Thompson, 523 U.S. 538 (1998)......................................................................5

Fortson v. Morris, 385 U.S. 231 (1966)..............................................................................3

Georgia v. United States, 411 U.S. 526 (1973)...................................................................3

Greater Boston Television Corp. v. F.C.C., 463 F.2d 268 (D.C. Cir. 1972).......................2

Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964)...................3

Medellin v. Texas, 128 S. Ct. 1346 (2008) ..........................................................................1

Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50
(1982).............................................................................................................................2

Federal Statute:

28 U.S.C. § 2106..................................................................................................................2 1

To the Honorable Antonin Scalia, Circuit Justice for the Fifth Circuit:

Petitioner José Ernesto Medellín respectfully moves this Court to recall and stay

its mandate in Medellin v. Texas, 128 S. Ct. 1346 (2008). The purpose of the recall is not

to revisit the merits of the Court’s judgment, but to grant the political branches a

reasonable opportunity to act in accordance with that judgment. Having declared

unconstitutional the Executive’s attempt to comply with the Avena Judgment of the

International Court of Justice without the aid of Congress, the Court should ensure that its

judgment does not have the unintended effect of preventing the political branches from

complying with the nation’s treaty obligations.

FACTS AND PRIOR PROCEEDINGS

Mr. Medellín hereby incorporates by reference the statement of facts and prior

proceedings set forth in his Petition for Writ of Certiorari and for a Writ of Habeas

Corpus, filed herewith.

REASONS FOR GRANTING A RECALL OF THE MANDATE

The Court Should Recall The Mandate To Avoid An Irreparable Breach

Of The Nation’s Treaty Obligations And In The Interest Of Justice.

This Court has not hesitated to stay the issuance of its mandate to allow Congress

an opportunity to act in a manner consistent with its decisions, particularly when

Congressional action is necessary to implement valid enforcement mechanisms. For

instance, after finding the 1978 Bankruptcy Reform Act unconstitutional and determining

that it fell to Congress to “restructure[e] the [Act] to conform to the requirements of Art.

III in the way that will best effectuate the legislative purpose,” the Court stayed its 2

mandate in order to “afford Congress an opportunity to reconstitute the bankruptcy courts

or to adopt other valid means of adjudication, without impairing the interim

administration of the bankruptcy laws.” Northern Pipeline Constr. Co. v. Marathon Pipe

Line Co., 458 U.S. 50, 88 & n.40 (1982). Similarly, after deeming unconstitutional the

conferral of certain powers on the Federal Election Commission, the Court stayed its

judgment to “afford Congress an opportunity to reconstitute the Commission by law or to

adopt other valid enforcement mechanisms without interrupting enforcement of the

provisions the Court sustains, allowing the present Commission in the interim to function

de facto in accordance with the substantive provisions of the Act.” Buckley v. Valeo, 424

U.S. 1, 143 (U.S. 1976).

The Court also has recalled its mandate “in the interest of fairness.” See Cahill v.

New York, New Haven & Hartford R.R. Co., 351 U.S. 183-84 (1956) (granting motion to

recall and amend mandate to provide for remand of unresolved issue). Indeed, the

Court’s authority is broad, founded in 28 U.S.C. § 2106 as well as the inherent power of a

court to recall a mandate to “avoid injustice.” Greater Boston Television Corp. v. F.C.C.,

463 F.2d 268, 277 (D.C. Cir. 1972) (as a matter of general doctrine, appellate courts have

inherent authority to recall a mandate to avoid injustice); 28 U.S.C. § 2106 (“The

Supreme Court . . . may affirm, modify, vacate, set aside or reverse any judgment, decree,

or order of a court lawfully brought before it for review, and may remand the cause and

direct the entry of such appropriate judgment, decree, or order, or require such further

proceedings to be had as may be just under the circumstances.”). 3

In cases involving election laws, for instance, the Court has been sensitive to the

need to provide legislatures sufficient time to react to its judgments. In Georgia v.

United States, 411 U.S. 526, 541 (1973), the Court affirmed the judgment of the district

court enjoining the Georgia House of Representatives from conducting elections under a

new reapportionment plan, and on remand, the Court instructed the district court to enjoin

any future elections until the State complied with a requirement that it obtain federal

approval of its districting plan. See also Fortson v. Morris, 385 U.S. 231, 235 (1966)

(allowing state legislature to act even though it had been found malapportioned and was

under court order to reapportion itself); cf. Maryland Comm. for Fair Representation v.

Tawes, 377 U.S. 656, 675-76 (1964) (not needing to reach question of remedy because

“sufficient time exists for the Maryland Legislature to enact legislation reapportioning

seats in the General Assembly prior to the 1966 primary and general elections.”).

On July 14, 2008, Members of the U.S. House of Representatives, in response to

this Court’s decision settling the process required under the Constitution to give domestic

force to the Avena Judgment, introduced the “Avena Case Implementation Act of 2008,”

“[t]o create a civil action to provide judicial remedies to carry out certain treaty

obligations of the United States under the Vienna Convention on Consular Relations and

the Optional Protocol to the Vienna Convention on Consular Relations.” 5a. The

proposed bill specifically authorizes courts to provide “any relief required to remedy the

harm done by the violation [of rights under Article 36 of the Vienna Convention],

including the vitiation of the conviction or sentence where appropriate.” Id. § 2(b)(2).

But as the United States represented to the ICJ a short time ago, “[g]iven the short 4

legislative calendar for our Congress this year, it [will] not be possible for both houses of

our Congress to pass legislation” implementing the Avena decision before Mr. Medellín’s

scheduled execution on August 5.

Likewise, Texas Senator Rodney Ellis has stated that he intends to introduce

implementing legislation at the state level. 16a. But as he advised the Texas trial court

that scheduled Mr. Medellín’s execution, the Texas Legislature is not presently in session,

and it will not reconvene until January 2009. In other words, the competent political

actors have the necessary will, but need the time to implement.

Should Texas execute Mr. Medellín before Congress has a reasonable opportunity

to convert the Avena Judgment into a justiciable federal right, the State of Texas will

forever deprive Mr. Medellín of his constitutionally protected right not to be deprived of

his life without due process of law. And by placing the United States in irreparable

breach of its treaty commitments before Congress and the federal Executive can act to

compel compliance, Texas effectively will usurp the institutional prerogative of the

federal political braches—advocated by Texas and confirmed by this Court—to

determine whether and how to give domestic legal effect to the treaty obligations of the

Nation. This Court must not allow Texas to subvert Mr. Medellín’s constitutional rights,

the authority of Congress to determine compliance with Avena, and the Nation’s

credibility in world affairs by racing to execute Mr. Medellín before Congress has had an

opportunity to act. See Petition for Writ of Certiorari to the Court of Criminal Appeals of

Texas or for Writ of Habeas Corpus, filed concurrently herewith, at Part 1. 5

This Court has warned that recall of a mandate to revisit the merits of a case

carries the risk of impinging on the finality of judgments and should only be used in

extraordinary circumstances. Calderon v. Thompson, 523 U.S. 538, 557 (1998). That

concern is not implicated here. Mr. Medellín does not ask the Court to revisit the merits

of his case. Instead, he asks the Court to recall and stay its mandate to ensure that its

judgment has its intended effect of guiding the political branches to a constitutionally

permissible method of complying with the Nation’s treaty obligations.

CONCLUSION

For the foregoing reasons, Mr. Medellín respectfully requests that this Court (a)

recall the mandate in Medellín v. Texas, and (b) stay further proceedings until Congress

has had a reasonable opportunity to enact legislation consistent with this Court’s decision

in that case. By separate motion, Mr. Medellín respectfully requests that upon recall of

the mandate, the Court stay his execution now scheduled for August 5, 2008.

Dated: July 31, 2008

Respectfully submitted,

D ONALD FRANCISD ONOVAN

(Counsel of Record)
CATHERINE M. AMIRFAR
JILL VANBERG
W ILLIAMC.W EEKS
D EBEVOISE& PLIMPTON LLP

919 Third Avenue
New York, NY 10022-3916
(212) 909-6000 6

SANDRA L. BABCOCK

Clinical Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue
Chicago, Illinois 60611
(312) 503-0114

APtoitionser No. 08-_____
===============================================================

INT HE

Supreme Court of the United States

--------------------------------- ▯ ---------------------------------

JOSÉ ERNESTOM EDELLÍN,
Petitioner,

vs.

THE STATE OFTEXAS,
Respondent.

--------------------------------- ▯ ---------------------------------

ON PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS OF TEXAS
OR FOR WRIT OF HABEAS CORPUS

--------------------------------- ▯ ---------------------------------

APPLICATION FOR STAY OF EXECUTION PENDING
DISPOSITION OF MOTION TO RECALL AND STAY THE MANDATE
AND PETITION FOR WRIT OF CERTIORARI
OR WRIT OF HABEAS CORPUS

--------------------------------- ▯ ---------------------------------

SANDRA L. ABCOCK DONALD F RANCISDONOVAN
Clinical Professor of Law (Counsel of Record)

Northwestern University School of LawATHERINEM. AMIRFAR
357 E. Chicago Avenue ILL VANBERG
Chicago, Illinois 60611 WILLIAMC.W EEKS
(312) 503-0114 DEBEVOISE & PLIMPTON LLP
919 Third Avenue

New York, NY 10022-3916
(212) 909-6000

Attorneys for Petitioner
=============================================================== TABLE OF CONTENTS

TABLE OF AUTHORITIES...............................................................................................1

FACTS AND PRIOR PROCEEDINGS..............................................................................5
REASONS FOR GRANTING A STAY OF EXECUTION...............................................5

I. The Court Should Exercise its Discretion to Grant a Stay of Execution..........................5

A. Mr. Medellín Meets Both the “Reasonable Probability” and “Fair
Prospect” Prongs of the Standard. ...........................................................................6

B. The Balance of Equities Strongly Weigh In Favor of A Stay of Execution..........10

C. The Court Should Grant a Stay in the Interest of Comity......................................18

CONCLUSION..................................................................................................................22 TABLE OF AUTHORITIES

Federal Cases:

Barefoot v. Estelle, 463 U.S. 880 (1983).........................................................................................5

California v. Brown, 475 U.S. 1301 (1986).....................................................................................5

Gardner v. Florida, 430 U.S. 349 (1977)......................................................................................10

Hilton v. Guyot, 159 U.S. 113 (1895)............................................................................................20

In re Roche, 448 U.S. 1312 (1980)..................................................................................................5

Medellin v. Texas, 128 S. Ct. 1346 (2008) ............................................................................ passim

Medellín v. Dretke, 544 U.S. 660 (2005).......................................................................................13

Mitsubishi Motors Corp. v. Soler Chyrsler-Plymouth, 473 U.S. 614 (1985)................................20

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)........................................................................20

Ritchie v. McMullen, 159 U.S. 235 (1895)....................................................................................20

Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)..........................................................................19

The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972)..............................................................20

United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ............................................13

Wainwright v. Booker, 473 U.S. 935 (1985)..................................................................................11

International Cases:

Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J.
12 (Mar. 31)..................................................................................................................... passim

United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1979 I.C.J.
7 (Provisional Measures Order of May 24), 1980 I.C.J. 3 (Judgment of Dec.

15) ...........................................................................................................................................19 To the Honorable Antonin Scalia, Circuit Justice for the Fifth Circuit:

Petitioner José Ernesto Medellín respectfully submits this application for a stay of

his execution, now scheduled for August 5, 2008, in the above entitled proceeding,

pending resolution of his Motion to Recall and Stay the Court’s Mandate in Medellín v.

Texas, 128 S. Ct. 1346 (2008), and his Petition for Writ of Certiorari from the Texas

Court of Criminal Appeals and for a Writ of Habeas Corpus.

These filings raise issues of extraordinary importance. As an initial matter, every

Member of this Court, the President of the United States, and, indeed, the State of Texas

have confirmed that Applicant José Ernesto Medellín has a right arising under treaty

commitments voluntarily made by the United States not to be executed unless and until

he receives the review and reconsideration specified by the International Court of Justice

in its judgment in the Avena case. There is no dispute that if Texas executes Mr.

Medellín in these circumstances, Texas would cause the United States irreparably to

breach treaty commitments made on behalf of the United States as a whole and thereby

compromise U.S. interests that both this Court and the President have described as

compelling.

Federal and state actors at the highest levels of government are currently engaged

in unprecedented efforts to bring the Nation into compliance by providing a judicial

forum to grant him the review and reconsideration to which he is entitled. Members of

the House of Representatives have introduced legislation, the Secretary of State and

Attorney General have requested Texas to assist the United States in carrying out its

international obligations, a Texas senator has committed to introducing legislation at the 2

earliest opportunity when the Texas Legislature reconvenes, and leaders of the diplomatic

and business communities have warned that Mr. Medellín’s execution could have grave

consequences for Americans abroad. But as the United States informed the ICJ a few

weeks ago, “[g]iven the short legislative calendar for our Congress this year, it [will] not

be possible for both houses of our Congress to pass legislation” implementing the Avena

decision.

Yet Mr. Medellín remains scheduled for execution on August 5, 2008, and to date,

no Texas actor has taken steps to halt his execution. Should Texas carry out Mr.

Medellín’s execution before Congress has had a reasonable opportunity to implement this

legislation, it will irreparably violate the nation’s treaty obligations just as the appropriate

political branches are attempting to prevent such a breach.

There are several factors unique to this case that compel the issuance of a stay.

First, Mr. Medellín’s petition reflects unique and compelling circumstances

weighing heavily in favor of a grant of a writ of certiorari or habeas corpus. Fundamental

principles of due process under the Fourteenth Amendment dictate that Mr. Medellín

cannot lawfully be executed in violation of a binding legal obligation arising from a

treaty voluntarily entered into by the United States to provide him additional process in

the form of review and reconsideration. To carry out a sentence of death when an

undisputed legal obligation, albeit one not yet effective on the domestic level, remains

unfulfilled would be antithetical to the very notion of lawful process. In these unique

circumstances, this Court should exercise its discretion to grant a stay to fully consider

the issues of extraordinary importance presented by his petition. See Petition for Writ of 3

Certiorari and for a Writ of Habeas Corpus, Part I.A, Medellin v. Texas, No. 08-__ (July

31, 2008).

Second, a stay of execution is necessary to preserve the ability of the political

branches to comply with the nation’s treaty obligations by the constitutional process

settled by this Court in Medellín v. Texas, 128 S. Ct. 1346 (2008). Texas should not be

permitted to impinge on the constitutional authority of Congress, as just confirmed by

this Court, to give effect to the United States’s obligations under Article 94(1) of the

United Nations Charter to comply with the Avena judgment. See Petition for Writ of

Certiorari and for a Writ of Habeas Corpus, Part I.B, Medellin v. Texas, No. 08-__ (July

31, 2008).

Third, the Court should grant a stay to vindicate the public’s interest in preserving

the United States’s international standing and protecting the rights of Americans abroad.

This Court has already recognized that the “United States interests in ensuring the

reciprocal observance of the Vienna Convention, protecting relations with foreign

governments, and demonstrating commitment to the role of international law . . . are

plainly compelling.” Medellin v. Texas, 128 S. Ct. at 1361, 1367. By granting a stay,

this Court will avoid an irreversible breach of the nation’s international obligations and

protect the welfare of all Americans who rely on the protections afforded by the Vienna

Convention on Consular Relations and various other treaty regimes that would be

implicated by the United States’s breach here. The public interest could not be stronger

in favor of a stay because the breach caused by Mr. Medellín’s execution could not be 4

remedied. See Petition for Writ of Certiorari and for a Writ of Habeas Corpus, Part I.C,

Medellin v. Texas, No. 08-__ (July 31, 2008).

Finally, a stay is also necessary to give “respectful consideration” to the findings

and proceedings of the ICJ. The ICJ has issued provisional measures on July 16, 2008

calling on the United States to “take all measures necessary” to prevent Mr. Medellín’s

execution. The ICJ’s provisional measures order was issued in connection with Mexico’s

request for interpretation of its 2004 Avena judgment. The ICJ has set an accelerated

briefing schedule in the case, reflecting its appreciation of all parties’ interest in a speedy

resolution of Mexico’s request. The United States’s pleadings are currently due on

August 29, and the ICJ will likely issue a decision on the merits before the end of 2008.

Another international body, the Inter-American Commission on Human Rights,

has likewise issued precautionary measures calling upon the United States to prevent Mr.

Medellín’s execution. The Commission is the only body to have reviewed all of the

evidence pertaining to the Vienna Convention violation in Mr. Medellín’s case and to

have done so under in a manner consistent with the Avena Judgment. Only days ago, the

Commission issued a preliminary report concluding that he had been prejudiced by the

Vienna Convention violation and recommending that he be granted a new trial as a result.

Under these circumstances, and for the additional reasons outlined below, a stay

in this case is both warranted and necessary. 5

FACTS AND PRIOR PROCEEDINGS

Mr. Medellín hereby incorporates by reference the statement of facts and prior

proceedings set forth in his Petition for Writ of Certiorari and for a Writ of Habeas

Corpus, filed simultaneously herewith.

REASONS FOR GRANTING A STAY OF EXECUTION

I. The Court Should Exercise its Discretion to Grant a Stay of Execution.

A stay of execution is appropriate if an applicant makes a four-part showing: first,

that there is a “reasonable probability” that four Justices of the Court will vote to issue a

writ of certiorari; second, that there is a “fair prospect” that a majority of the Court will

reverse the decision below; third, that irreparable harm will likely result if the stay is not

granted; and fourth, that the “balance [of] the equities” weighs in favor of a stay, based

on the relative harms to the applicant and respondent, as well as the interests of the public.

See Barefoot v. Estelle, 463 U.S. 880, 895 (1983). Where a stay is sought in conjunction

with a petition for a writ of certiorari, as opposed to on direct appeal, “the consideration

of prospects for reversal dovetails, to a greater extent, with the prediction that four

Justices will vote to hear the case.” In re Roche, 448 U.S. 1312, 1314 n.1 (1980)

(Brennan, J., in chambers).

These general principles apply to cases on review in this Court from both state

and federal courts. See California v. Brown, 475 U.S. 1301 (1986) (Rehnquist, J., in

chambers) (applying these principles in granting stay of state court judgment invalidating

a death sentence); In re Roche, 448 U.S. at 1314 (granting stay of state court mandate, 6

following denial of stay by state court). The Court has never had occasion to consider

these principles in connection with a motion to recall and stay its mandate.

A. Mr. Medellín Meets Both the “Reasonable Probability” and “Fair
Prospect” Prongs of the Standard.

The issues presented in the accompanying motion to recall the mandate and

petition for writ of certiorari raise compelling questions of extraordinary importance,

including:

1. Whether Mr. Medellín’s Fourteenth Amendment right not to be deprived of his
life without due process of law entitles him to remain alive until Congress has had
a reasonable opportunity to exercise its constitutional prerogative to implement
the right to judicial review and reconsideration under Avena and Other Mexican
Nationals, so that he can secure access to a remedy to which he is entitled by
virtue of a binding international legal obligation of the United States;

2. Whether the Court should grant a writ of habeas corpus to adjudicate Mr.
Medellín's claim on the merits, where he seeks relief pursuant to a binding
international legal obligation that the federal political branches seek to implement,
and where adequate relief cannot be obtained in any other form or from any other
court; and

3. Whether the Court should recall and stay its mandate in Medellín v. Texas, 128 S.
Ct. 1346, not to revisit the merits, but to allow Congress a reasonable opportunity

to implement legislation consistent with the Court’s decision in that case.

As an initial matter, this Court has now settled the constitutional processes that

must be undertaken for the United States to comply with its international legal obligation

to comply with the Avena judgment. In Medellin v. Texas, this Court held, first, that the

Article 94(1) obligation to comply with Avena was not self-executing so as to allow a

court in the United States to enforce it, and, second, the President acted beyond his

authority when he ordered that the United States would comply with the obligation by 7

having state courts provide the required review and reconsideration. Medellin v. Texas,

128 S. Ct. 1346, 1366 (2008). The Court has held that, instead, action by the federal

political branches is needed to render the Avena decision enforceable in Mr. Medellín’s

case. Id. at 1366 (“Congress is up to the task of implementing non-self-executing

treaties.”); see also id. at 1369, 1371 (noting action by Congress and/or by the President);

id. at 1374 (Stevens, J., concurring in judgment) (“[T]he fact that the President cannot

legislate unilaterally does not absolve the United States from its promise to take action

necessary to comply with the ICJ’s judgment.”).

In response, the “Avena Implementation Act of 2008” has been introduced in the

House of Representatives to confer on Mr. Medellín the right to judicial review and

reconsideration mandated by the ICJ. 5a-6a. Such relief would include “any declaratory

or equitable relief necessary to secure the rights,” and “any relief required to remedy the

harm done by the violation [of his consular rights], including the vitiation of the

conviction or sentence where appropriate.” Id. § 2(b). Texas State Senator Rodney Ellis

also has said that he will propose implementing legislation at the state level as soon as the

Texas legislature reconvenes in January 2009. See 15a-16a. And negotiations at the

highest levels of the federal and state executives continue to settle upon a means of

compliance. See 80a-83a.

The fact that additional time is required for the political branches to give the

Avena Judgment domestic legal effect should not operate to deprive Mr. Medellín of his

undisputed rights, particularly where his very life hangs in the balance. Simply put, Mr.

Medellín cannot be executed consistent with a binding legal obligation arising from a 8

treaty voluntarily entered into by the United States to provide him additional process in

the form of review and reconsideration. As a matter of law, therefore, his execution

would violate the most fundamental objectives of the due process clause. See Pet. for

Writ of Certiorari or for Writ of Habeas Corpus, Part I, Medellin v. Texas, No. 08-__

(July 31, 2008).

While Mr. Medellín’s ability to demonstrate prejudice has no bearing on his

entitlement under international law to the procedural remedy of review and

reconsideration—which is undisputed—the remedy would not be an empty exercise. The

undisputed violation of his Vienna Convention rights in his case goes to the very heart of

the validity of his conviction and sentence. Evidence submitted to the court below but

never considered by it or any other U.S. court on the merits establishes that during the

investigation and prosecution of Mr. Medellín’s case, his defense attorney was under a

six-month suspension from the practice of law, was jailed prior to trial for seven days for

violating his suspension, and indeed, less than three weeks before the beginning of Mr.

Medellín’s trial, was forced to file a writ of habeas corpus on his own behalf in order to

keep himself out of jail. See Second Subsequent Application for Post-Conviction Writ of

Habeas Corpus at 40, In re Medellin, No. __ (Tex. Crim. App. July 28, 2008). Billing

records indicate that the sole investigator for the defense spent a total of eight hours on

the case prior to trial, including time spent with Mr. Medellín. Id. at 41. Had Mr.

Medellín received review and reconsideration, he would have been able to demonstrate

that if the Mexican consulate had been notified of his detention before he was tried and

convicted, the consulate would have rendered material assistance. Id. at 38-39, 46-47. 9

Indeed, the Inter-American Commission on Human Rights, the only tribunal to consider

Mr. Medellín’s claim of prejudice resulting from the Vienna Convention violation on the

merits using a standard consistent with the Avena Judgment, has determined that he was

prejudiced and that due process demanded a new trial. Id. at 34-36.

As the United States has acknowledged, Mr. Medellín has yet to receive the

requisite review and reconsideration mandated by Avena, notwithstanding the alternative

prejudice findings by the Texas Court of Criminal Appeals and the federal district court

in his first habeas applications. See 98a (“[The previous holdings] do[] not give full and

independent weight to the treaty violation, which is what Avena requires and which is

what the President has directed.”). Justice Breyer, writing also on behalf of Justices

1
The Texas trial court considering Mr. Medellin’s first habeas application found, in its
consideration of the merits of the Vienna Convention violation, that Mr. Medellin
“fail[ed] to show foreign nationality which requires notification of a foreign
consulate” and could not show that the violation affected the constitutional validity
of his conviction and sentence. See Second Subsequent Application for Post-

Conviction Writ of Habeas Corpus at 6, 33-34, In re Medellin, No. __ (Tex. Crim.
App. July 28, 2008). That decision was before the ICJ when it issued Avena. Not
only does it apply the wrong standard, but any finding on nationality or prejudice
could not trump the obligation under that judgment to prospectively review and
reconsider the conviction and sentence. Mr. Medellin recognizes that in Medellin v.
Texas, slip op at 5 n.1, this Court suggested, in dictum on a point not at issue in the

case, that he had “likely waived” any claim that he had been deprived of the
assistance of Mexican consular officers in developing mitigation evidence. The ICJ
judgment in Avena, however, requires that the Mexican nationals subject to the
judgment be given a full, prospective opportunity to present all evidence relevant to
the issue of prejudice. See Second Subsequent Application for Post-Conviction Writ
of Habeas Corpus at 6-7, In re Medellin, No. __ (Tex. Crim. App. July 28, 2008).

Hence, only if Mr. Medellin is given that opportunity to put on that evidence would
the United States fulfill its treaty obligation under Article 94(1) of the United
Nations Charter and Avena. Mr. Medellin respectfully suggests that, if given an
opportunity to fully consider that issue on the merits, a court would so hold. 10

Souter and Ginsburg, noted: “While Texas has already considered [whether the police

failure to inform Medellin of his Vienna Convention rights prejudiced Medellin], it did

not consider fully, for example, whether appointed counsel’s coterminous 6-month

suspension from the practice of the law ‘caused actual prejudice to the defendant’--

prejudice that would not have existed had Medellin known he could contact his consul

and thereby find a different lawyer.” Medellin v. Texas, 128 S. Ct. at 1389-1390 (Breyer,

J., dissenting).

To allow an execution to proceed in these circumstances, before a U.S. court can

consider his claims, cannot be said to be “based on reason rather than caprice or

emotion.” Gardner v. Florida, 430 U.S. 349, 357-58 (1977) (opinion of Stevens, J.)

(“[D]eath is a different kind of punishment from any other which may be imposed in this

country” and it is thus “of vital importance to the defendant and to the community that

any decision to impose the death sentence be, and appear to be, based on reason rather

than caprice or emotion.”). Although the nature of the death penalty alone does not

justify a stay in every instance, “a death sentence cannot begin to be carried out by the

State while substantial legal issues remain outstanding.” Barefoot v. Estelle, 463 U.S. at

888.

B. The Balance of Equities Strongly Weigh In Favor of A Stay of

Execution.

Here, the balance of equities could not be stronger in favor of a stay of execution.

There can be no doubt that the paramount interest in human life is at stake here and that

that interest would be irreparably harmed if Mr. Medellín were to be executed without 11

having received the review and reconsideration to which he is entitled. In that event, Mr.

Medellín would forever be deprived of the opportunity to vindicate his rights. See, e.g.,

Wainwright v. Booker, 473 U.S. 935, 935 n.1 (1985) (Powell, J., concurring) (“[T]hat

irreparable harm will result if a stay is not granted . . . is necessarily present in capital

cases.”). But Mr. Medellín’s execution would go far beyond the confines of his

individual case; his case raises unique circumstances implicating the public interest that

make the grant of a stay imperative not only to maintain the standing of the United States

in its international relations, but also to protect the lives of countless Americans living,

working and traveling abroad.

First, Mr. Medellín would suffer the gravest possible form of irreparable injury

were he to be put to death before having a chance to be afforded the protections to which

he is undisputedly entitled by virtue of the treaty obligations of the United States.

Members of the House of Representatives have taken the first step towards compliance

by proposing the “Avena Implementation Act of 2008,” which would confer on Mr.

Medellín the right to raise in domestic courts what all entities agree is an undisputed

international legal obligation. This Court interpreted the scheme of Article 94 of the

United Nations Charter to preserve to the political branches the “option of

noncompliance”—specifically, their ability “to determine whether and how to comply

with an ICJ judgment.” Medellin v. Texas, 128 S. Ct. at 1360. Texas should not be

allowed to deprive the Executive and Congress of the opportunity to comply by rushing

to execute Mr. Medellín before they have been able to act and thereby placing the United

States in irreparable breach. As a result of the irreparable injury not only to Mr. Medellín, 12

but also to the institutional interests of both the Executive and Congress, the equities

weigh heavily in favor of a stay.

Second, compared with the irremediable loss of a human life and the paramount

federal interests at stake, any prejudice that Texas might suffer due to a delay in Mr.

Medellín’s execution would be inconsequential. Mr. Medellín would remain incarcerated

on death row, as he has been for over fourteen years. While Texas has a legitimate

interest in implementing its criminal laws, a further delay equal to the length of time

needed to implement the Avena Judgment could hardly constitute a hardship to Texas.

Indeed, far from harming Texas, a stay of execution is apt given Texas’s role in

the treaty violation itself. As Justice Stevens stated in Medellin v. Texas, “Texas’ duty [to

protect the honor and integrity of the Nation] is all the greater since it was Texas that – by

failing to provide consular notice in accordance with the Vienna Convention – ensnared

the United States in the current controversy.” Medellin v. Texas, 128 S. Ct. at 1374

(Stevens, J., concurring). “Having already put the Nation in breach of one treaty,” Justice

Stevens wrote, “it is now up to Texas to prevent the breach of another.” Id.

Third, the repercussions of Mr. Medellín’s execution in violation of the Avena

Judgment would be felt far beyond the borders of Texas, damaging the United States’s

relations with its treaty partners, eroding our allies’ confidence in the ability of the United

States to live up to its international commitments, and potentially endangering thousands

of Americans overseas who require the assistance of U.S. consulates. The public interest

in affording Congress the opportunity to effect compliance with Avena is thus profound. 13

The President, who shoulders the primary responsibility for our nation’s foreign

relations, United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936), has set

forth the critical U.S. interests at stake in this case. In an amicus brief submitted to the

Court, the United States cited two principal foreign policy considerations prompting the

President’s 2005 decision to direct state courts to provide review and reconsideration:

“the need for the United States to be able to protect Americans abroad” and the need to

“resolve a dispute with a foreign government by determining how the United States will

comply with a decision reached after the completion of formal dispute-resolution

procedures with that foreign government.” Br. for the United States as Amicus Curiae

Supporting Respondent at 43, 45, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928).

In light of these objectives, the President considered it in the “paramount interest of the

United States” to achieve “prompt compliance with the ICJ’s decision with respect to the

51 named individuals” including Mr. Medellín. Id. at 41.

All nine Justices of this Court recognized that the United States has a vital public

interest in complying with its obligations under the Avena Judgment. Writing for the

majority, Chief Justice Roberts noted that

In this case, the President seeks to vindicate United States interests in
ensuring the reciprocal observance of the Vienna Convention, protecting
relations with foreign governments, and demonstrating commitment to

the role of international law. These interests are plainly compelling.

Medellin v. Texas, 128 S. Ct. at 1367. In a concurring opinion, Justice Stevens agreed

that “the costs of refusing to respect the ICJ’s judgment are significant.” Id. at 1375.

And Justice Breyer, joined by Justices Souter and Ginsburg, observed in his dissenting 14

opinion that noncompliance with the Avena Judgment would exact a heavy toll on the

United States by “increase[ing] the likelihood of Security Council Avena enforcement

proceedings, [] worsening relations with our neighbor Mexico, [] precipitating actions by

other nations putting at risk American citizens who have the misfortune to be arrested

while traveling abroad, or [] diminishing our Nation’s reputation abroad as a result of our

failure to follow the ‘rule of law’ principles that we preach.” Id. at 1391.

As noted, the rights and obligations set forth in Article 36 of the Vienna

Convention are entirely reciprocal in nature. And the risks of noncompliance, well-

known to those entrusted with carrying out the nation’s foreign relations, are severe. As

Ambassador Jeffrey Davidow, who holds the rank of Career Ambassador (the highest

rank available to diplomats) and served as an ambassador for the United States in the

administrations of Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, and

George W. Bush, observed:

Diplomats function in the international arena based on a
basic reality: governments will respond in kind to the

treatment they receive. This notion of reciprocity is a
bedrock principle governing relations between nations, and
the United States’ good faith enforcement of its own treaty
obligations is the only means by which we can ensure other
nations will abide by their treaty obligations to us ….
Without our own strong enforcement of treaties, the United
States’ efforts in a vast array of contexts—economic,

political and commercial—would be significantly
undermined.

99a, ¶ 3. 15

For these reasons, failure to comply with the Avena Judgment “would

significantly impair the ability of American diplomats to advance critical U.S. foreign

policy.” Id. The importance of the United States’s compliance to the United States’s

treaty partners is dramatically illustrated here by the submission in 2007 of amicus briefs

from sixty countries urging compliance in Medellin v. Texas. See Br. of Amici Curiae the

European Union and Members of the Int’l Community in Support of Petitioner, Medellin

v. Texas, 128 S. Ct. 1346 (No. 06-984) (forty seven nations and the European Union); Br.

Amicus Curiae of the Government of the United Mexican States in Support of Petitioner

José Ernesto Medellín, Medellin v. Texas, 128 S. Ct. 1346 (No. 06-984) (Mexico); Br. of

Foreign Sovereigns as Amici Curiae in Support of Petitioner José Ernesto Medellín,

Medellin v. Texas, 128 S. Ct. 1346 (No. 06-984) (twelve nations); see also 101a-122a.

There can be no doubt, moreover, that the consular rights afforded by the Vienna

Convention are critical to the safety and security of Americans who travel, live and work

abroad: missionaries, Peace Corps volunteers, tourists, business travelers, foreign

exchange students, members of the military, U.S. diplomats, and countless others.

Timely access to consular assistance is crucially important whenever individuals face

prosecution under a foreign and often unfamiliar legal system. The United States thus
2
insists that other countries grant Americans the right to prompt consular access. For

2 U.S. consulates provide arrested Americans with a list of qualified local attorneys,

explain local legal procedures and the rights accorded to the accused, ensure contact
with family and friends, protest any discriminatory or abusive treatment, and monitor
their well-being throughout their incarceration. See U.S. Department of State,
Assistance to U.S. Citizens Arrested Abroad, http://travel.state.gov/travel/tips/
emergencies/emergencies_1199.html. 16

example, in 2001, when a U.S. Navy spy plane made an emergency landing in Chinese

territory after colliding with a Chinese jet, the State Department cited the Vienna

Convention in demanding immediate consular visits to the plane’s crew. See State

Department Daily Press Briefing, April 2, 2001, available at

http://www.state.gov/r/pa/prs/dpb/2001/1889.htm. Chinese authorities granted consular

visits to the crew members, who were detained in China for eleven days. During the

tense standoff, the U.S. Ambassador to China emphasized that these rights of immediate

and unobstructed consular access to detained American citizens are “the norms of

international law,” China grants U.S. access to spy plane crew, CNN, April 3, 2001,

while the President warned that the failure of the Chinese government “to react promptly

to our request is inconsistent with standard diplomatic practice and with the expressed

desire of both our countries for better relations[,]” Statement by the President on

American Plane and Crew in China, The White House, April 2, 2001, available at

http://www.whitehouse.gov/news/releases/2001/04/20010402-2.html.

The business community is similarly concerned about the consequences of

noncompliance with the Avena Judgment. In a letter to House Speaker Nancy Pelosi

urging Congress to pass legislation implementing Avena, Peter M. Robinson, President

and CEO of the United States Council for International Business observed that

The security of Americans doing business abroad is clearly
and directly at risk by U.S. noncompliance with its
obligations under the Vienna Convention on Consular
Relations. American citizens abroad are at times detained
by oppressive or undemocratic regimes, and access to the
American consulate is their lifeline . . . . While examples of

Americans being assisted in this way are too numerous to 17

list, suffice it to say that the overseas employees of the U.S.
business community need this vital safety net.

123a. Accordingly, Mr. Robinson wrote: “Failure to honor our universally recognized

treaty obligations will erode global confidence in the enforceability of the United States’

international commitments across a broad range of subjects, and will have a negative

impact upon its international business dealings.” 124a.

Key international observers have likewise observed the importance to the United

States of achieving compliance with Avena. In particular, Professor Phillip Alston, who

serves as the United Nations Human Rights Council Special Rapporteur on Extrajudicial,

Summary or Arbitrary Executions, recently singled out the lack of compliance with the

Avena Judgment as an issue of particular concern:

The provision of consular rights seems to be treated as an
issue affecting only those foreign nationals currently on

death row in Texas. But precisely the same issue applies to
any American who travels to another country. One
legislator with whom I spoke noted that when he travels
overseas he is hugely reassured by the fact that he would
have the right of access to the US consulate if he was
arrested. The present refusal by Texas to provide review

undermines the role of the US in the international system,
and threatens the reciprocity between states with respect to
the rights of each others’ nationals.

128a. Professor Alston further noted that non-compliance with Avena threatens to

undermine other treaty regimes involving such varied subjects as trade, investment and

the environment. “Why,” he queried, “would foreign corporations, relying in part upon

treaty protections, invest in a state such as Alabama or Texas if they risked being told that 18

the treaty bound only the US government but was meaningless at the state level? This is

where the Medellin standoff leaves things.” 127a-128a.

Simply put, if Texas places the United States in breach of its treaty obligations,

the risk that our treaty partners will suspend compliance with their obligations under

those same treaties increases dramatically. Such a response could compromise, among

other things, the crucial rights of consular notification and assistance of all American

citizens abroad. With thousands of Americans arrested or detained abroad every year,

see 100a, ¶ 4, that risk is palpable. Indeed, “[i]f the United States fails to keep its word to

abide by the Avena judgment, that action will not only reduce American standing in the

world community, but affirmatively place in jeopardy the lives of U.S. citizens traveling,

working, and living abroad.” Id. Allowing Mr. Medellín’s execution to proceed in

contravention of the United States’s obligations under the Avena Judgment, when steps to

implement that obligation consistent with this Court’s guidance are in process, would

also send the message that the United States is indifferent not only to the rule of law but

to human life itself.

C. The Court Should Grant a Stay in the Interest of Comity.

The ICJ is currently considering Mexico’s Request for Interpretation of the Avena

Judgment. In conjunction with its Request for Interpretation, Mexico also requested that

the ICJ grant provisional measures of protection in respect of Mr. Medellín and four other

Mexican nationals named in the Avena Judgment who are currently on Texas’s death row.

The ICJ granted Mexico’s request for provisional measures on July 16, 2008, directing 19

the United States to “take all measures necessary to ensure that Messrs. José Ernesto

Medellín Rojas [and the four other Mexican nationals] are not executed pending

judgment on the Request for interpretation submitted by the United Mexican States,

unless and until these five Mexican nationals receive review and reconsideration

consistent with paragraphs 138 to 141 of the [Avena] Judgment.” 38a, ¶ 80(a). The ICJ

has set an accelerated briefing schedule in the case, reflecting its appreciation of all

parties’ interest in a speedy resolution of Mexico’s request. The United States’s

pleadings are currently due on August 29, and the ICJ will likely issue a decision on the

merits before the end of 2008.

The Court should stay Mr. Medellín’s execution both out of respect for the ICJ’s

order of provisional measures and to allow the ICJ an opportunity to consider and resolve

Mexico’s Request for Interpretation. The United States led the effort to create the ICJ,

and has not hesitated to avail itself of the Court, initiating ten cases as an applicant or by

special agreement with another state. See International Court of Justice, Contentious

cases ordered by countries involved, United States of America, http://www.icj-

cij.org/docket/index.php?p1=3&p2=3&p3=1&p=US. Indeed, the United States was the

first State to invoke the Optional Protocol, when it sued Iran in 1979 on claims, among

others, of breach of the Vienna Convention. See United States Diplomatic and Consular

Staff in Tehran (U.S. v. Iran), 1979 I.C.J. 7 (Provisional Measures Order of Dec. 15);

1980 I.C.J. 3 (Judgment of May 24).

This Court now has repeatedly held that the decisions of the ICJ are entitled to

“respectful consideration.” Medellin v. Texas, 128 S. Ct. at 1361 n.9 (quoting Breard v. 20

Greene, 523 U.S. 371, 375 (1998)); Sanchez-Llamas v. Oregon, 548 U.S. 331, 355-56

(2006). But to execute Mr. Medellín when the ICJ is still considering the merits of

Mexico’s request would convey nothing but disrespect for the tribunal’s professionalism

and competence. The interest of Mr. Medellín, as an individual whose very life is at

stake, in enforcing his procedural rights, and the public interest in preserving the

commitment of the United States to the rule of law in a sensitive matter involving

relations with one of our closest neighbors, provide compelling reasons to extend comity

4
to the ICJ’s proceedings.

Comity is likewise due to the Inter-American Commission on Human Rights,

which recently adjudicated a petition filed by Mr. Medellín on November 21, 2006,

3
Mr. Medellin recognizes that in Breard v. Greene, 523 U.S. 371, 378 (1998) and Fed.
Republic of Germany v. United States, 526 U.S. 111, 111 (1999), this Court declined
to stay executions in cases in which the International Court of Justice had issued
provisional measures. In neither of those cases, however, had the ICJ reached a final

judgment prescribing relief, and in neither of those cases had the President
determined that the United States should comply or had Congress begun steps to
effect compliance.

4 As the Court explained in Hilton v. Guyot, 159 U.S. 113 (1895), comity “is the
recognition which one nation allows within its territory to the legislative, executive

or judicial acts of another nation, having due regard both to international duty and
convenience, and to the rights of its own citizens or of other persons who are under
the protection of its laws.” Id. at 163-64. Under the principle of comity and similar
doctrines, the Court has repeatedly counseled respect for the competence of
international or foreign courts and the efficacy of their proceedings. See, e.g.,

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 629 (1985)
(agreement to arbitrate before foreign arbitral tribunal enforced); Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 254 n.22, 257-61 (1981) (action dismissed in favor of foreign
court under doctrine of forum non conveniens); The Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 8-9 (1972) (agreement to litigate before foreign court enforced); Ritchie

v. McMullen, 159 U.S. 235, 243 (1895) (foreign judgment enforced under Hilton
comity rule). 21

raising the violation of his consular rights and several violations of the 1948 Declaration

of the Rights and Duties of Man. As discussed above, the Commission issued

precautionary measures calling upon the United States to take all measures necessary to

preserve Mr. Medellín’s life pending the Commission’s investigation of the allegations

raised in his petition. At a March 7, 2008 hearing before the Commission in Washington,

D.C., representatives of the U.S. Department of State noted that the United States was

complying with those precautionary measures.

The Commission has now issued its findings, making it the first adjudicative body

to consider whether Mr. Medellín was prejudiced in his 1994 trial by the violation of his

rights to consular notification and assistance under a standard consistent with that

mandated by the ICJ. The Commission concluded that he was prejudiced, and

recommended that the United States vacate his death sentence and provide him with a

new trial. 65a, ¶ 128; 72a, ¶ 160. In addition, the Commission reinstated the

precautionary measures it had issued, calling upon the United States to preserve Mr.

Medellín’s life pending the implementation of its recommendations. 71a, ¶ 159.

This Court should stay Mr. Medellín’s execution in the interest of comity to

permit the United States to give effect to the Commission’s recommendations and the

precautionary measures issued in respect thereof. To disregard the finding of prejudice

by an esteemed body of experts, whose authority the United States fully recognizes, on

5 As discussed in Mr. Medellín’s Second Subsequent Application, the alternative

prejudice findings made by the trial court and adopted by this Court in connection
with Mr. Medellín’s initial habeas application failed to independently analyze the
Vienna Convention violation. See Second Subsequent Application at Part II.A. 22

the basis of facts never before considered on the merits by any domestic court would

signal profound disrespect for the Commission and Mr. Medellín’s inalienable right not

to be deprived of his life without due process of law.

CONCLUSION

For the foregoing reasons, Mr. Medellín respectfully requests that this Court grant

him (a) a stay of execution, now scheduled for August 5, 2008, pending resolution of his

petition for a writ of certiorari and, if the writ is granted, further order of the Court, or (b)

in the alternative, an order temporarily enjoining respondent Texas officials from

carrying out the execution subject to the same terms.

Respectublyitted,

Donald Francis Donovan
(Counsel of Record)

C ATHERINEM. A MIRFAR
C ARLM ICARELLI
JILL VANBERG
W ILLIAMC.W EEKS

D EBEVOISE& PLIMPTON LLP
919 Third Avenue
New York, NY 10022-3916
(212) 909-6000

SANDRA L. ABCOCK
Clinical Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue

Chicago, Illinois 60611
(312) 503-0114

Attorneys for Petitioner
Dated: July 31, 2008 Nos. 08-5573, 08-5574, 08A98 & 08A99
=====================================================================

N THE

Supreme Court of the United States

--------------------------------- ▯ ---------------------------------

JOSÉERNESTO M EDELLÍ,
Petitioner,

vs.

T HESTATE OFTEXAS ,
Respondent.

--------------------------------- ▯ ---------------------------------

In re JÉERNESTO M EDELLÍN,
Petitioner.

--------------------------------- ▯ ---------------------------------
ON PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS OF TEXAS AND
ON PETITION FOR WRIT OF HABEAS CORPUS

--------------------------------- ▯ ---------------------------------

REPLY TO BRIEF IN OPPOSITION TO PETITION FOR CERTIORARI AND
TO RESPONSE TO PETITION FOR HABEAS CORPUS, MOTION TO RECALL
AND STAY MANDATE, AND APPLICATION FOR STAY OF EXECUTION

--------------------------------- ▯ ---------------------------------

SANDRA L. BABCOCK D ONALD FRANCISD ONOVAN
Clinical Professor of Law (Counsel of Record)

Northwestern University School of Law C ATHERINEM. AMIRFAR
357 E. Chicago Avenue C ARLM ICARELLI
Chicago, Illinois 60611 JILL VANBERG
(312) 503-0114 W ILLIAMC.W EEKS

D EBEVOISE& PLIMPTONLLP
919 Third Avenue
New York, NY 10022-3916
(212) 909-6000

Attorneys for Petitioner

===================================================================== i

TABLE OF CONTENTS

ARGUMENT...................................................................................................................................1

I. Texas’s Response to Petitioner’s Due Process Argument Ignores Entirely the
Undisputed Legal Obligation of the United States to Comply with the Avena
Judgment..............................................................................................................................1

II. Texas Ignores Entirely the U.S. Constitutional Scheme for Congressional
Enforcement of Article 94(1) of the United Nations Charter as Expounded by This
Court in Medellín v. Texas...................................................................................................3

III. Texas’s Argument That Mr. Medellín Has Already Received Review and

Reconsideration, If Accepted, Would Leave the United States in Breach of Its
International Obligations. ....................................................................................................5

IV.Texas Does Not Dispute The Authority of This Court to Recall the Mandate in
Medellin v. Texas in the Interest of Justice and to Preserve the Integrity of Its
Judgment..............................................................................................................................9

V. Texas’s Position Would Confer on Each State the Authority to Prevent the United
States from Complying with Its International Legal Obligations......................................11

CONCLUSION..............................................................................................................................13 ii

TABLE OF AUTHORITIES

F EDERAL C ASES

Breard v. Greene, 523 U.S. 371 (1998)...........................................................................................2

Buckely v. Valeo, 424 U.S. 1 (1976) ...............................................................................................9

Cafeteria Workers v. McElroy, 367 U.S. 886 (1961) ......................................................................3

Calderon v. Thompson, 523 U.S. 538..............................................................................................9

Chy Lung v. Freeman, 92 U.S. 275 (1876)................................................................................5, 11

Federal Republic of Germany v. United States, 526 U.S. 111 (1999).............................................2

Gagnon v. Scarpelli, 411 U.S. 778 (1973).......................................................................................3

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)............................................9

Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951).......................................3

Lisenba v. California, 314 U.S. 219 (1941).....................................................................................2

Mathews v. Eldridge, 424 U.S. 319 (1976)......................................................................................3

Medellín v. Dretke, 544 U.S. 660 (2005).........................................................................................6

Medellín v. Quarterman, No. 08-20495 (5th Cir. Aug. 4, 2008) (unpublished)............................13

Medellín v. Texas, 128 S. Ct. 1346 (2008) ............................................................................ passim

Morrissey v. Brewer, 408 U.S. 471 (1972)......................................................................................3

Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982)...................8

United States v. Belmont, 301 U.S. 324 (1937)...............................................................................5

United States v. Russell, 411 U.S. 423 (1973).................................................................................2

STATE C ASES

Brigham v. State, 692 A.2d 384 (Vt. 1997).....................................................................................9

Claremont School District v. Governor, 703 A.2d 1353 (N.H. 1997).............................................9

Derolph v. State, 677 N.E.2d 733 (Ohio 1997) ...............................................................................9 iii

Ex parte Alba, 2008 Tex. Crim. App. LEXIS 691 (June 9, 2008)...................................................4

Ex parte Medellin, No. WR-50,191-03, 2008 Tex. Crim. App. LEXIS 851 (July 31, 2008)........12

Lake View School District No. 25 of Phillips County v. Huckabee, 91 S.W.3d 472 (Ark.
2002)..........................................................................................................................................9

Roosevelt Elementary School District No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994)......................9

FEDERAL C ONSTITUTIONAL PROVISIONS ,S TATUTES ,AND TREATIES

U.S.C ONST . art. VI, cl. 2 ...............................................................................................................11

U.S.C ONST . amend. XIV.................................................................................................................3

Vienna Convention on Consular Relations, opened for signature Apr. 24, 1963, 21 U.S.T.
77, 596 U.N.T.S. 261.............................................................................................................5, 6

United Nations Charter, opened for signature June 26, 1945 T.S. No. 993, 59 Stat. 1031...2, 3, 10

INTERNATIONAL C ASES

Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12
(Mar. 31).......................................................................................................................... passim 1

ARGUMENT

I. Texas’s Response to Petitioner’s Due Process Argument Ignores Entirely the
Undisputed Legal Obligation of the United States to Comply with the Avena Judgment.

Texas focuses on the unfinished state of the legislative process of implementing Avena

and argues that Mr. Medellín has made no showing of a constitutional right. Texas, in particular,

argues that Mr. Medellín’s petition would mean that “a single member of the House of

Representatives” could obtain a stay of execution merely by introducing legislation. BIO at 8-9.

Texas argues that Mr. Medellín is no different from any other prisoner who might benefit from

prospective legislation. BIO at 10.

But Texas wholly overlooks that the United States has an existing legal obligation to

comply with the Avena judgment, and that this Court recently made clear that Congressional

action is the mechanism for compliance with the judgment. Remarkably, Texas attaches no

significance whatsoever to the ICJ’s judgment in Avena adjudicating the international legal

obligation of the United States. Nor does Texas attach any importance to the treaty ratified by

the President and Senate making compliance with the judgment an international legal obligation,

to the federal Executive’s recognition that that judgment creates a binding international legal

obligation, or to this Court’s recognition that compliance with that undisputed international legal

obligation is a “compelling” federal interest. Medellín v. Texas, 128 S. Ct. 1346, 1367 (2008).

Texas also dismisses, as irrelevant, the action by the President declaring that it was in the

paramount interest of the United States to comply with its treaty obligation to abide by the Avena

judgment, the efforts by the Executive to urge Texas to comply voluntarily in the wake of this

Court’s decision in Medellín v. Texas, and the actions by members of the Congressional

leadership—including the chairpersons of the House Judiciary Committee and House Foreign

Relations Committee—seeking to implement the Avena judgment through domestic legislation 2

once this Court made clear in Medellín v. Texas that legislation was necessary before the courts

would enforce the treaty in domestic law.

At its most basic, due process guarantees to a criminal defendant a right not to be

deprived of “fundamental fairness essential to the very concept of justice.” Lisenba v. California,

314 U.S. 219, 236 (1941). Contrary to what Texas suggests, Mr. Medellín’s due process right

not to be executed before a mechanism for implementing the Avena judgment is in place not only

is consistent with this Court’s opinion in Medellín v. Texas; it is a direct consequence of it. In

Medellín v. Texas, this Court held that the Constitution requires that the implementation of the

United States’s undisputed treaty obligation under Article 94(1) should come from Congress.

See 128 S. Ct. at 1356, 1366, 1368-71. In direct response to this Court’s decision, which held for

the first time that such legislative implementation was necessary as to the Avena judgment,

members of the leadership of the House of Representatives have introduced the Avena Case

Implementation Act of 2008, H.R. 6481, 110th Cong., 2d Sess (5a-6a). The stated purpose of

that legislation is to “create a civil action to provide judicial remedies to carry out certain treaty

obligations of the United States under the Vienna Convention on Consular Relations and the

Optional Protocol to the Vienna Convention on Consular Relations.” Id., long title (5a).

Texas is proposing, for the first time in our Nation’s history, to proceed with an execution

that is undisputedly illegal under a binding international legal obligation of the United States. 1

Because significant “difficulties attend[] the notion that due process of law can be embodied in

fixed rules,” United States v. Russell, 411 U.S. 423, 431 (1973), the Court must look to basic

principles of fundamental fairness in explicating the scope of due process in these novel

1 By contrast, in Breard v. Greene, 523 U.S. 371 (1998), and Federal Republic of Germany
v. United States, 526 U.S. 111 (1999), the ICJ had not yet rendered a final judgment, and the

United States disputed that the type of ICJ order at issue in those cases was legally binding. 3

circumstances. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973) (“fundamental fairness” is the

“touchstone of due process”); Morrissey v. Brewer, 408 U.S. 471, 481 (1972) (“[D]ue process is

flexible and calls for such procedural protections as the particular situation demands.”). “‘[D]ue

process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to

time, place and circumstances.” Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (quoting

Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961), in turn quoting Joint Anti-Fascist

Comm. v. McGrath, 341 U.S. 123, 162-163 (1951) (Frankfurter, J., concurring)).

In these circumstances, it would violate Mr. Medellín’s right not to be deprived of his life

without due process of law were he to be executed as scheduled on August 5. Texas’s attempt to

reduce the argument to one about possible future legislation ignores that the obligation to comply

with Avena is a real, existing, legal obligation binding on the United States, which this Court

only recently held falls to Congress to implement. To allow Texas to execute Mr. Medellín now,

when the enforcement mechanism identified by this Court in his own case has not yet been given

even a chance to work, would run counter to the requirement of fundamentally fair procedure

that forms the core of the Fourteenth Amendment’s due process clause.

II. Texas Ignores Entirely the U.S. Constitutional Scheme for Congressional Enforcement

of Article 94(1) of the United Nations Charter as Expounded by This Court in Medellín
v. Texas.

Texas argues that to grant relief to Mr. Medellin would be contrary to this Court’s

holding in Medellin v. Texas, 128 S. Ct. 1346 (2008). Texas is wrong. To the contrary, Texas’s

unseemly rush to execution can only be described as open defiance of—and an attempt to

frustrate—the constitutional process of legislative treaty implementation that this Court

prescribed in Medellín v. Texas. In that decision, this Court emphasized that the possibility that a

treaty “might not automatically become domestic law hardly means the underlying treaty is

‘useless’” because “Congress is up to the task of implementing non-self-executing treaties.” Id. 4

at 1365-66. The Court also held that Congress has authority to implement ICJ judgments either

judgment by judgment or on a blanket basis. Id. at 1365. Although Texas argues that some

significance should be attributed to the absence of Congressional action in the four years since

the Avena judgment, Congress in fact had no reason to believe implementing legislation was

necessary until this Court issued its recent decision in Medellín v. Texas.

Indeed, just three days ago, on August 1, 2008, the leadership of the Committee on the

Judiciary—including its Chairman and the respective Chairmen of the Subcommittees on the

Constitution, Civil Rights, and Liberties and on Crime, Terrorism, and Homeland Security—

appealed to Texas Governor Rick Perry to stay Mr. Medellín’s execution while Congress works

“to implement procedures to effectuate our treaty obligations.” Supplemental Appendix, 139a-

140a. Their letter made clear that the Avena Case Implementation Act of 2008 was introduced

in response to the decision in Medellin v. Texas, wherein “the Supreme Court determined that

Congress has the legislative authority to authorize the judicial review directed [in the Avena

Judgment], and to ensure compliance with this legal obligation across the United States.” Id.

The letter further affirmed the observation, made by this Court and many others, that

“compliance with the Vienna Convention is a critical aspect of national security and foreign

policy, including the reciprocal treatment of U.S. persons overseas.” Id. And, as previously

noted, Secretary of State Rice and Attorney General Mukasey also urged Texas to abide by the

international-law obligations of the United States to comply with the Avena judgment.

Yet, far from acknowledging the need to stay its hand to allow Congress to act, Texas

filed its brief in this Court today, arguing that it should be allowed to proceed to Mr. Medellín’s

execution. The State would have this Court conclude that the “momentum of the death machine

in Texas,” Ex parte Alba, 2008 Tex. Crim. App. LEXIS 691, at *28 (June 9, 2008) (Price, J., 5

dissenting), must not yield even to allow Congress a reasonable opportunity to act where

paramount national interests and fundamental constitutional rights hang in the balance. Texas,

however, does not act in isolation when the international obligations of the United States are

involved; the United States as a whole is responsible for the consequences. See, e.g., Chy Lung v.

Freeman, 92 U.S. 275, 279-80 (1876) (United States government is answerable internationally

for treaty breaches by the states, and the consequences of such breaches fall upon not just one

state but “all the Union”). This Court’s decision in Medellín v. Texas does not question the long-

settled principle that international relations is exclusively a federal responsibility, see, e.g.,

United States v. Belmont, 301 U.S. 324, 331 (1937), Chy Lung, 92 U.S. at 280, but merely

clarifies the allocation of that responsibility among the federal executive, judicial and legislative

branches.

Particularly given the shortened legislative calendar this year as a result of the upcoming

party conventions, Congress has not yet had a reasonable opportunity to perform its

constitutionally assigned function as explicated by this Court in Medellín v. Texas. Petitioner

requests that, in these circumstances, the mandate in his case be stayed for a period of one year to

allow Congress an opportunity to enact implementing legislation in the next session of Congress

that would implement the international obligations of the United States in accordance with this

Court’s decision.

III. Texas’s Argument That Mr. Medellín Has Already Received Review and
Reconsideration, If Accepted, Would Leave the United States in Breach of Its

International Obligations.

Texas argues that the state trial court on collateral review already complied with Avena

because Mr. Medellín raised a Vienna Convention claim in 2001, before Avena was decided, and

the trial court rejected it. See BIO Appx. A. Texas’s position, however, misstates both the state

trial court’s decision and the requirements that the ICJ set forth in Avena. 6

The state trial court decision to which Texas refers concluded that any violation of Article

36 of the Vienna Convention in Mr. Medellín’s case did not “impact on the validity of his

conviction and sentence” under the Fifth, Sixth and Fourteenth Amendments to the U.S.

Constitution. BIO Appx. A, Conclusions of Law, ¶ 17. The Avena judgment, however, requires

that the Article 36 violation must be reviewed on its own terms and must not be required to also

qualify as a violation of a constitutional right. Avena ¶¶ 122, 134, 138-40. The review must be

capable of effectively “examin[ing] the facts, and in particular the prejudice and its causes,

taking account of the violation of the rights set forth in the Convention.” Id. ¶ 122. But the state

court did not take account of whether the Article 36 violation prejudiced Mr. Medellín in his

conviction or sentence, because it focused solely on whether it resulted in a violation of his U.S.

constitutional rights.

Indeed, the Avena Judgment itself rejected Texas’s contention: the ICJ was well aware of

the state trial court’s review of Mr. Medellín’s Vienna Convention claim, as the trial court’s

findings of fact and conclusions of law were submitted to the ICJ and discussed by both parties

in their briefing. See Brief Amicus Curiae of the Government of the United Mexican States at

23-24, Medellín v. Dretke, 544 U.S. 660 (2005) (No. 04-5928). On this record, the ICJ rejected

the argument of the United States that it was already in compliance with the required remedy.

Avena ¶¶ 130-134, 153(9).

As a result, the United States has recognized—as it must—that the existing record does

not suffice to comply with Avena. The United States pointed out at oral argument in the Texas

Court of Criminal Appeals that the prior state-court review did not comply with Avena’s review

and reconsideration requirement, because the prior review “d[id] not give full and independent

weight to the treaty violation, which is what Avena requires.” Exhibit 14 in the court below, at 7

49: 8-11. And just a few weeks ago, the United States represented to the ICJ that “[t]here is no

question that if a death sentence were carried out in any of these cases [including Mr.

Medellín’s] without the required review and reconsideration, this would be inconsistent with the

Avena judgment,” 92a ¶ 27, and that steps remained to be taken to give effect to the Avena

judgment in these cases, 90a ¶ 4. In effect, Texas is seeking to impeach the United States

government’s representations to the Texas Court of Criminal Appeals and the ICJ, expressing the

considered and consistent view of the United States government, despite this Court’s holding that

“[i]t is well settled that the United States’ interpretation of a treaty ‘is entitled to great weight.’”

Medellín v. Texas, 128 U.S. at 1361.

Not surprisingly, the Texas Court of Criminal Appeals does not even suggest, in its 2005

or 2008 decision, that the earlier state collateral review proceeding might constitute the “review

and reconsideration” that Avena requires, even though Texas made essentially the same

argument in the 2005 proceedings that it makes here. Judge Cochran of that court, in a

concurring statement cited by Texas, argued that review and reconsideration was likely to lead to

a finding of no prejudice, and pointed to earlier decisions rejecting Mr. Medellín’s constitutional

claim of ineffective assistance of counsel, but she did not conclude that the review and

reconsideration required by Avena had already occurred. Similarly, this Court’s footnote in

Medellín v. Texas noted some arguments that Texas could raise in opposition to a finding of

prejudice, but expressly declined to “consider whether Medellin was prejudiced in any way by

the violation of his Vienna Convention rights,” and did not suggest that Mr. Medellín had

previously received a determination as to prejudice in compliance with Avena. Medellín v. Texas,

128 S. Ct. at 1355 n.1. Texas has also previously argued to this Court that Mr. Medellín already

received the review and reconsideration required by Avena, and this Court, like the Texas Court 8

of Criminal Appeals, has ever endorsed that view. As noted, any suggestion that such prior

review might comply with Avena is foreclosed by the fact that the ICJ specifically held in Avena

that Mr. Medellín had not received the review and reconsideration that would be required to

remedy the Vienna Convention violation in his case.

Finally, Texas’s speculation that review and reconsideration would show that Mr.

Medellín was not prejudiced by the Vienna Convention violation in his case not only is irrelevant

to the legal obligation to provide review and reconsideration but is contradicted by the facts in

the record. Resp’t Br. at 12-16. Mr. Medellín did not know, nor did anyone attempt to inform

him, of his right to consular assistance. See Second Subsequent Application for Post-Conviction

Writ of Habeas Corpus, Ex. 19, ¶¶ 3-5, In re Medellin, No. WR-50,191-03 (Tex. Crim. App. July

28, 2008). It is unquestioned that Mexico would have provided substantial assistance to Mr.

Medellín, as it has for many Mexican nationals in his position, had the consulate been aware of

his case. Id. Ex. 21, ¶¶ 25-34.

In lieu of careful review and reconsideration of the entire record, however, Texas would

have this Court assume prejudice based on the incorrect standard and incomplete record that

characterized the state and federal post-conviction findings. Yet the record as it stands now

establishes that Mr. Medellín was represented at trial by a lawyer whose performance, even in

the pantheon of ineffective lawyers known to this Court, was grossly deficient. It is not

contested that Mr. Millin continued to represent Mr. Medellín while suspended from the practice

of law, that Mr. Millin was occupied with defending himself against criminal charges when he

should have been preparing to defend Mr. Medellín, that Mr. Millin was suffering from serious

health problems that resulted in his death shortly after Mr. Medellín’s trial, and that only four

hours were spent on investigation prior to the commencement of jury selection. See id. at 40-41 9

& Ex. 30, ¶ 24. Indeed, the record before the court below documents in excruciating detail how

Mr. Millin repeatedly violated the terms of his suspension, was booked into jail on contempt

charges, and spent years trying to defend his license and keep himself from serving additional

jail time. Around this time, he was diagnosed with a cancer that led to his death two years later.

Not surprisingly, Mr. Millin was not focused on defending his client against capital murder

charges. He presented only the most perfunctory penalty phase case; the highlight was a

psychologist who had never before met Mr. Medellín.

The evidence also shows that if the Mexican Consulate had been involved at the time of

the trial, it would have monitored Mr. Millin’s performance and provided him assistance in

investigating Mr. Medellín’s case or retained different counsel for Mr. Medellín upon perceiving

his deficiencies. See id. at 38-39, 45-47. It goes without saying that the quality of counsel is the

single most important fact in determining whether a defendant receives the death penalty. But

Mexico would have done more than that: it would have ensured that counsel had funds to retain

experts and investigators, it would have served as a liaison to Mr. Medellín’s Spanish-speaking

relatives, it would have made every effort to gather and present life history evidence that has, in

countless cases, convinced a jury to spare the accused’s life – even in cases involving highly

aggravated crimes. These facts alone – which deserve consideration by a court empowered to

conduct the review and reconsideration mandated by ICJ – provide ample support for a finding

of prejudice.

IV. Texas Does Not Dispute The Authority of This Court to Recall the Mandate in
Medellin v. Texas in the Interest of Justice and to Preserve the Integrity of Its
Judgment.

Texas concedes that this Court has authority to stay its decision in order to permit

legislative action. See BIO at 11 (citing N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 10

U.S. 50, 88 & n. 40 (1988); Buckley v. Valeo, 424 U.S. 1, 143 (1976)). Texas merely argues

3
that the present circumstances are not sufficiently compelling to warrant such a recall and stay.

Texas is wrong. Specifically, Texas cites to Calderon v. Thompson, 523 U.S. 538, 558

(1998), supposedly for the proposition that recall of mandate requires a showing of actual

innocence or fraud on the court. What Calderon v. Thompson actually holds, however, is that the

“general rule” is that “where a federal court of appeals sua sponte recalls its mandate to revisit

the merits of an earlier decision denying habeas corpus relief to a state prisoner, the court abuses

its discretion unless it acts to avoid a miscarriage of justice as defined by our habeas corpus

jurisprudence.” Id. But here, the Court not acting sua sponte, and Mr. Medellín is not asking the

Court “to revisit the merits of an earlier decision.” Id. Rather, Mr. Medellín is asking this Court

to recall and stay the mandate in order to give effect to merits of its decision by allowing

Congress sufficient time to act. 4

2
Likewise, state supreme courts have stayed their mandates for a year or more to permit
state legislatures a reasonable opportunity to act in accordance with their rulings. See, e.g., Lake
View Sch. Dist. No. 25 of Phillips County v. Huckabee, 91 S.W.3d 472, 511 (Ark. 2002) (staying
mandate for approximately thirteen months to give state legislature and executive branch “time

to correct constitutional disability” occasioned by determination that public school funding
system was unconstitutional); Derolph v. State, 677 N.E.2d 733, 747 (Ohio 1997) (staying effect
of decision for twelve months and remanding to trial court for retention of jurisdiction until
legislation in conformity with opinion is enacted and put into effect); Claremont Sch. Dist. v.

Governor, 703 A.2d 1353, 1360 (N.H. 1997) (staying all further proceedings until end of
upcoming legislative session and further order of the court to permit the legislature a reasonable
time to address issues involved in the case); see also, e.g., Brigham v. State, 692 A.2d 384, 398
(Vt. 1997) (remanding case so that jurisdiction could be retained until valid legislation was
enacted and put into effect); Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806,

816 (Ariz. 1994) (directing trial court to “retain jurisdiction to determine whether, within a
reasonable time, legislative action has been taken”).

3 Similarly, Texas does not question this Court’s jurisdiction to issue an original writ of
habeas corpus, but only whether it should exercise its discretion to do so.

4
Texas also cites Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 244-245
(1944), but that case merely holds that a final judgment may be set aside to remedy fraud or
injustice. It does not address the question of recall of the mandate to allow for legislative action. 11

In any event, in these extraordinary and unprecedented circumstances, Texas has no basis

to insist that this Court follow the “general rule” that the Court has set forth to guide the federal

courts of appeals in exercising their discretion in more ordinary cases. Petitioner is not asking

for an indefinite opportunity for Congress to act, but a reasonable one, to allow Congress the

option of enacting implementing legislation in its next session.

V. Texas’s Position Would Confer on Each State the Authority to Prevent the United

States from Complying with Its International Legal Obligations.

In Medellín v. Texas, the Court interpreted the obligation to comply with an ICJ judgment

under Article 94 of the U.N. Charter to be non-self-executing, in order to “preserve the option of

noncompliance.” 128 S. Ct. at 1360. But if the United States’s word in entering into an

international agreement is to mean anything, the option of compliance must be even more

carefully protected. By simply assuming that Congress never wanted the United States to

comply with its obligations—and self-assuredly predicting there is “no prospect” of Congress

passing implementing legislation, BIO at 10—Texas indulges the most cynical assumptions

about the intentions of the United States in entering into treaties. An honorable nation does not

enter into binding international legal commitments with the intent of breaching them. Nor, for

that matter, does a pragmatic nation, which recognizes that the reciprocal observance of

international legal obligations is crucial to the protection of its own interests abroad, enter into

treaties that it means to breach. As this Court observed, “Congress has not hesitated to pass

implementing legislation for treaties that in its view require such legislation,” id. at 1366 n.12;

but Congress only recently learned of this Court’s conclusion that this treaty requires such

legislation to be effective.

If, as this Court held in Medellín, separation of powers prevents the courts or the

President from requiring the United States to comply with a treaty absent action from Congress, 12

it is at least equally true that state courts and executive officials cannot require the United States

to irrevocably breach a treaty before Congress has had a chance to act. If the Supremacy Clause

is to mean anything, it is that one State cannot, acting alone, subordinate the Nation’s ability to

negotiate and implement treaties—self-executing or otherwise—to the State’s own parochial

interests. The Constitution has given the federal government exclusive power to conduct foreign

relations, yet Texas would have this Court suppose that “the Constitution, which provides for this,

[has] done so foolish a thing as to leave it in the power of the States to pass laws whose

enforcement renders the general government liable to just reclamations which it must answer,

while . . . not prohibit[ing] to the States the acts for which [the United States] is held

responsible.” Chy Lung, 92 U.S. at 280.

And to be clear, it is not even the highest executive, legislative, or judicial officials of

Texas who stand to place the Nation in breach of its international obligations. In Texas, unlike

most states, no action by the Governor is needed to set an execution date. Rather, it is a single

District Attorney, with the rubber-stamp approval of a single Texas trial court judge, who

exercised the authority to set an execution date for Mr. Medellín despite the pendency of efforts

to comply with Avena. At the May 5, 2008 hearing convened on the Assistant District

Attorney’s motion to schedule an execution date, Judge Caprice Cosper of the 339th Judicial

District Court of Harris County, Texas, refused to hear the testimony of an international law

expert and denied the request of a Mexican ambassador to present the views of Mexico, stating

“I did not intend to hold a lengthy hearing. I intend to set an execution date.” 167a. And as

three judges of the Texas Court of Criminal Appeals pointed out in concurrence, that court has

no authority to stay executions; even in the most compelling circumstances, “the Court’s hands

are tied.” Ex parte Medellin, No. WR-50,191-03, 2008 Tex. Crim. App. LEXIS 851, at *25, 29 13

(Tex. Crim. App. July 31, 2008) (Price, J., concurring, joined by Holcomb and Cochran, JJ.).

Judge Price, writing for himself, further stated that executing Mr. Medellín in these

circumstances would be “an embarrassment and a shame to the people of Texas and the rest of

the country,” but concluded that “the [Texas] judicial branch [was] powerless to rectify an

obvious and manifest injustice.” Id. at *32-33 (Price, J., concurring).

CONCLUSION

If this execution goes forward tomorrow, the world—including the nearly 200 other

countries who reciprocally agreed with the United States to abide by ICJ judgments in cases to

which they were party—will have every reason to question the value of that commitment and of

the United States’s treaty commitments generally. This Court, the highest judicial organ of the

United States under our Constitution, has confirmed that the United States has an international

legal obligation to provide Mr. Medellin review and reconsideration. The President, the

authority exclusively responsible for our international relations under our Constitution, has come

to the same conclusion and, at the same time, emphasized the importance of complying with that

obligation. The Congress, the highest legislative authority and the organ that, this Court has just

ruled, is entrusted under our Constitution with the decision whether and how to comply with the

obligation, has now begun to take steps to comply. Yet Texas is about to execute Mr. Medellín

anyway, taking the decision out of Congress’s hands and placing the United States irrevocably in

breach. That course of affairs is fundamentally inconsistent with the holding and rationale of this

Court decision in Medellín v. Texas.

In considering the constitutional design settled by the Court in Medellin v. Texas, it is

important to be specific about how Texas has come to the decision to execute Mr. Medellín

tomorrow, August 5. Because the Board of Pardons and Paroles has today declined to

recommend any relief (171a), the Governor has authority under Texas law to grant no more than 14

a reprieve of thirty days. The court below held it lacked power to interfere with the execution.

As a result, the decision to breach the treaty has effectively been made by the District Attorney

of Harris County, Texas, who, with the approval of a state trial-court judge, set an execution date

at the earliest point allowed under Texas law. It in no way disparages the diligence, competence,

or integrity of those local and state officials, attuned as they understandably are to state and local

interests, to suggest that they should not be left with the discretion to decide whether the United

States should breach an international commitment made by the President and Senate on behalf of

the United States as a whole. We respectfully submit that this Court’s decision in Medellín v.

Texas was never intended to lead to such a result without giving Congress a reasonable

opportunity to act.

This afternoon, the United States Court of Appeals for the Fifth Circuit held that it has no

authority to grant a stay. Medellín v. Quarterman, No. 08-20495, slip op. at 4 (5th Cir. Aug. 4,

2008) (unpublished). For the foregoing reasons, this Court should grant a writ of certiorari or a

writ of habeas corpus or recall and stay its mandate in Medellin v. Texas, 128 S. Ct. 1346 (2008).

In addition the Court should stay the execution of José Ernesto Medellín to allow the competent

political actors a reasonable opportunity to implement the international law obligations of the

United States reflected in the Judgment of the International Court of Justice.

Respectfully submitted,

D ONALD FRANCIS DONOVAN
(Counsel of Record)

C ATHERINEM. A MIRFAR
C ARLM ICARELLI
JILL VANB ERG
W ILLIAM C.W EEKS
D EBEVOISE& PLIMPTON LLP

919 Third Avenue
New York, NY 10022-3916
(212) 909-6000 15

SANDRA L. BABCOCK
Clinical Professor of Law
Northwestern University School of Law

357 E. Chicago Avenue
Chicago, Illinois 60611
(312) 503-0114

Attorneys for Petitioner

August 4, 2008 IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit
F I L E D
No. 08-20495
August 4, 2008

Charles R. Fulbruge III
JOSE ERNESTO MEDELLIN Clerk

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,

Correctional Institutions Division

Respondent-Appellee

On Motion for Authorization to File

Successive Petition for Writ of Habeas
Corpus in the United States District Court
Before the Southern District of Texas, Houston

Before JONES, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.

PER CURIAM: *

Petitioner Jose Ernesto Medellin, convicted of capital murder and

sentenced to death, is scheduled to be executed August 5, 2008. Through

counsel, on August 1, 2008, Petitioner filed a motion for authorization to file a

*
Pursuant to TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances THtCIR.th in 5
R. 47.5.4. No. 08-20495

successive petition pursuant to 28 U.S.C. § 2244(b) and a motion for stay of
1
execution.

Pursuant to 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or

successive habeas corpus application under section 2254 that was presented in

a prior application shall be dismissed.” Additionally, pursuant to section

2244(b)(2):

A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—

(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously
unavailable; or

(B)(i) the factual predicate for the claim could not
have been discovered previously through the exercise of due

diligence; and

(ii) the facts underlying the claim, if proven and

viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable factfinder would

have found the applicant guilty of the underlying offense.

During Petitioner’s initial federal habeas proceedings, he filed a motion

for a Certificate of Appealability (COA) in this Court, arguing, among other

things, that the State violated the Vienna Convention by failing to notify him of

his right to contact the Mexican consul. While his motion for COA was pending

in this Court, the International Court of Justice issued its decision in the Case

Concerning Avena and Other Mexican Nationals ( Mex.v.U.S.), 2004 I.C.J. 12

1 We note that, consistent with our local rules, counsel filed a statement providing a

detailed explanation under oathdetailing the reason for the latefiling. See Fifth Circuit Local
Rule 8.10 (requiring such an explanation if permission to file a successive petition is filed
within 5 days of the scheduled execution).

2 No. 08-20495

(Judgment of Mar. 31) ( Avena ). In Avena, the ICJ held that because of the

violations of the Vienna Convention, the named Mexican nationals were entitled

to review and reconsideration of their state-court convictions and sentences in

the United States. Id.; see Medellin v. Texas, 128 U.S. 1346, 1352 (2008). The

ICJ also decreed that this right was not subject to any forfeiture under state

rules with respect to challenges to criminal convictions. Id.; see Medellin, 128

U.S. at 1352.

Subsequently, this Court denied a COA, holding that the Vienna

Convention claim was procedurally defaulted and that our prior precedent

constrained us to hold that the Vienna Convention did not confer an individually

enforceable right. Medellin v. Dretke, 371 F.3d 270, 279 (5th Cir. 2004) (per

curiam).

As set forth above, § 2244(b)(1) provides that “[a] claim presented in a
second or successive habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed.” (emphasis added). Because

Petitioner previously raised the instant Vienna Convention violation in his

initial habeas proceedings, § 2244(b)(1) requires that it be dismissed.

Nonetheless, in his motion for authorization to file a successive petition,

Petitioner attempts to fall under the requirements of § 2244(b)(2)(A).

Specifically, Petitioner contends that the Supreme Court’s decision in Medellin

constituted a new rule, “namely the requirement that implementation of the

treaty obligation to comply with the Avena judgment is a task for Congress.”

Motion at 26 (citing Medellin v. Texas, 128 S.Ct. at 1368-69).

In Medellin, the Supreme Court determined that the ICJ’s decision in

Avena was not binding domestic law unless Congress enacted implementing

statutes. 128 S.Ct. at 1357. The Supreme Court further rejected the claim that

President Bush’s determination independently required states to provide review

of the claims in Avena despite any state procedural default rules. Medellin, 128

3 No. 08-20495

S.Ct. at 1267-71. Petitioner now contends that because legislative officials have

begun the process of implementing the decision in Avena, he has satisfied the

requirements for a successive petition. We have recently rejected this particular

claim.

In In re Fierro, the movant argued that, despite the adverse decision in

Medellin, there was “substantial reason to continue to stay consideration of his

request for authorization to file a successive habeas petition, because . . . work

is underway to introduce a bill in Congress that would make the Avena judgment

enforceable in the domestic courts.” 2008 WL 2330965 *1 (5th Cir. June 2, 2008)

(internal citation marks omitted). We found that Fierro had not made a prima

facie showing that his claim relied on a new rule of constitutional law as

required by § 2244(b)(2)(A). Likewise, here, we are unpersuaded that Petitioner

has made a prima facie showing that his claim constitutes a new rule of
constitutional law as required under § 2244(b)(2)(A).

In conclusion, after considering the arguments of Petitioner, the response

of the Respondent, and the Supreme Court’s decision in Medellin v. Texas, 128

S.Ct. 1346 (2008), we deny leave to file the successive petition. Because habeas

relief is not available, we must deny the motion for stay of execution. See Lackey

v. Scott, 52 F.3d 98, 100 (5th Cir. 1995) (explaining that a court may stay an

execution based on a second or successive federal habeas petition only when

substantial grounds exist upon which relief may be granted).

DENIED.

4--- S.Ct. ---- Page 1
--- S.Ct. ----, 2008 WL 3821478 (U.S.Tex.), 77 USLW 3073

Medellin v. Texas one) does not itself have the force and effect of
Only the Westlaw citation is currently available.Jose domestic law sufficient to set aside the judgment or
Ernesto MEDELLIN, the ensuing sentence, and Congress has not
v. progressed beyond the bare introduction of a bill in
TEXAS. the four years since the ICJ ruling and the four

In re Jose Ernesto MEDELLIN. months since our ruling in Medellín v. Texas, 552
Nos. 06-984, 08-5573, 08-5574. U.S. ---- (2008). This inactio n is consistent with the
President's decision in 2005 to withdraw the United
Aug. 5, 2008. States' accession to jurisdiction of the ICJ with regard
to matters arising under the Convention.

Donald Francis Donovan , Counsel of Record,
Catherine M. Amirfar , Jill Van Berg , William C. The beginning premise for any stay, and indeed for
Weeks, Debevoise & Plimpton LLP, Sandra L. the assumption that Congress or the legislature might
Babcock, Northwestern University School of Law, seek to intervene in this suit, must be that petitioner's
Attorneys for Petitioner. confession was obtained unlawfully. This is highly
unlikely as a matter of domestic or international law.
James C. Ho, Counsel of Record, Greg Abbott, Kent Other arguments seeking to establish that a violation
C. Sullivan, Eric J.R. Nichols , Edward L. Marshall ,
Kristopher S. Monson, Tina J. Miranda, Attorneys for of the Convention constitutes grounds for showing
Respondent. the invalidity of the state court judgment, for instance
Donald Francis Donovan , Counsel of Record, Carl because counsel was inadequate, are also
Micarelli, Catherine M. Amirfar, Bruce W. Klaw, Jill insubstantial, for the reasons noted in our previous
Van Berg, Emma C. Prete , Debevoise & Plimpton opinion. Id., at ---- (slip op., at 5).

LLP, New York, New York, for Petitioner.
Greg Abbott , Attorney General of Texas, Kent C. The Department of Justice of the United States is
Sullivan, First Assistant Attorney General, Eric J.R. well aware of these proceedings and has not chosen
Nichols, Deputy Attorney General for Criminal to seek our intervention. Its silence is no surprise:
Justice, R. Ted Cruz , Solicitor General, Counsel of The United States has not wavered in its position that
Record, Sean D. Jordan , Deputy Solicitor General, petitioner was not prejudiced by his lack of consular
Kristofer S. Monson, Daniel L. Geyser , Adam W. access.

Aston, Assistant Solicitors General, Office of the
Attorney General, Austin, Texas, for Respondent. The application to recall and stay the mandate and for
PER CURIAM. stay of execution of sentence of death, presented to
*1 [1] Petitioner seeks a stay of execution on the Justice SCALIA, and by him referred to the Court, is
theory that either Congress or the Legislature of the denied. The application for stay of execution of
State of Texas might determine that actions of the
International Court of Justice (ICJ) should be given sentence of death, presented to Justice SCALIA, and
by him referred to the Court, is denied. The petition
controlling weight in determining that a violation of for a writ of habeas corpus is denied.
the Vienna Convention on Consular Relations is
grounds for vacating the sentence imposed in this It is so ordered.
suit. Under settled principles, these possibilities are
too remote to justify an order from this Court staying
the sentence imposed by the Texas courts. And Justice STEVENS, dissenting.
neither the President nor the Governor of the State of Earlier this Term, in Medellín v. Texas, 552 U.S. ----
(2008), we concluded that neither the President nor
Texas has represented to us that there is any the International Court of Justice (ICJ) has the
likelihood of congressionalor state legislative action. authority to require Texas to determine whether its

[2] It is up to Congress whether to implement violation of the Vienna Convention prejudiced
obligations undertaken under a treaty which (like this petitioner. Although I agreed with the Court's

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 3821478.rtf --- S.Ct. ---- Page 2
--- S.Ct. ----, 2008 WL 3821478 (U.S.Tex.), 77 USLW 3073

judgment, I wrote separately to make clear my view Case Implementation Act of 2008, H.R. 6481, 110th
that Texas retained the authority-and, indeed, the Cong., 2d Sess. (2008), and the Government has
duty as a matter of international law-to remedy the represented to the International Court of Justice it
potentially significant breach of the United States' will take further steps to give effect to that court's

treaty obligations identified in the President's judgment pertinent to Medellín's conviction, among
Memorandum to the Attorney General. Because it others, Request for Interpretation of the Judgment of
appears that Texas has not taken action to address the 31 March 2004 in the Case Concerning Avena and
serious national security and foreign policy Other Mexican Nationals (Mex. v. U.S.), 2008 I.C.J.
implications of this suit, I believe we should request No. 139, ¶ 37 (Order of July 16). I would therefore
the views of the Solicitor General, who argued on enter the requested stay of execution for as long as
behalf of the Executive Branch in earlier proceedings the remainder of the 2007 Term, to allow for a

in the suit, before allowing Texas to proceed with the current statement of th e views of the Solicitor
execution. General and for any congressional action that could
affect the disposition of petitioner's filings. I would
As I explained in my separate opinion in March, the defer action on the petition for a writ of certiorari to
cost to Texas of complying with the ICJ judgment the Court of Criminal Appeals of Texas, the petition
for an original writ of habeas corpus, and the motion
“would be minimal, particularly given the remote to recall and stay the mandate in Medellin v.
likelihood that the violation of the Vienna
Convention actually prejudiced” this petitioner. 552 Texas,supra.
U.S., at ---- (slip op., at 5) (STEVENS, J., concurring
in judgment).“On the other hand, the costs of Justice GINSBURG, dissenting.
refusing to respect the ICJ's judgment are significant. I would grant the application for a stay of execution.
The entire Court and the Pr esident agree that breach Before the International Court of Justice, in response

will jeopardize the United States' ‘plainly to Mexico's request for provisional measures, the
compelling’ interests in ‘ensuring the reciprocal United States represented: “[C]ontrary to Mexico's
observance of the Vienna Convention, protecting suggestion, the United States [does] not believe that it
relations with foreign governments, and need make no further effort to implement this Court's
demonstrating commitment to the role of Avena Judgment, and ... would ‘continue to work to
international law.’” Ibid. Given these stakes, and give that Judgment full effect, including in the case
given that petitioner has been under a death sentence of Mr. Medellín.’” Request for Interpretation of the

for 14 years, waiting a short time to guarantee that Judgment of 31 March 2004 in the Case Concerning
the views of the Executive have been given respectful Avena and Other Mexican Nationals (Mex. v. U.S.),
consideration is only prudent. Balancing the honor of 2008 I.C.J. No. 139, ¶ 37 (Order of July 16). I would
the Nation against the modest burden of a short delay invite the Solicitor General's clarification of that
to ensure that the breach is unavoidable convinces me representation very recently made to the international
that the application for a stay should be granted. tribunal. Pending receipt and consideration of the
Solicitor General's response, I would defer action on

*2 Accordingly, I respectfully dissent. Medellín's submissions.

Justice SOUTER, dissenting. Justice BREYER, dissenting.
*3 The International Court of Justice (ICJ) has held
I joined the dissent in Medellín v. Texas, 552 U.S. ---- that a treaty that the United States has signed,
(2008) (BREYER, J., dissenting), and invoke the rule
that it is reasonable to adhere to a dissenting position namely, the Vienna Convention on Consular
throughout the Term of Court in which it was Relations (Vienna Convention), Apr. 24, 1963,
announced. See North Carolina v. Pearce, 395 U.S. [1970] 21 U.S.T. 77, T.I.A.S. No. 6820 , does not
711, 744 (1969) (Harlan, J., concurring in part and permit execution of this defendant without a further
dissenting in part). The only chance to apply the hearing concerning whether Texas' violation of the
Vienna Convention's obligation to notify the
treaty provisions the dissent would have held defendant of his right to consult Mexico's consul
presently enforceable is now through action by the
other branches of the Government. A bill on the constituted harmless error. Case Concerning Avena
subject has been introduced in the Congress, Avena and Other Mexican Natio nals (Mex. v. U.S.), 2004

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 3821478.rtf --- S.Ct. ---- Page 3
--- S.Ct. ----, 2008 WL 3821478 (U.S.Tex.), 77 USLW 3073

I.C.J. 61-64 (Judgment of Mar. 31). The United understood the legal need for further legislation of
States has agreed that the ICJ's judgments will have this kind. That fact, al ong with the approaching
“binding force ... between the parties and in respect election, means that more than a few days or weeks
of [a] particular case.”Un ited Nations Charter, Art. are likely necessary for Congress to determine

59, 59 Stat. 1062, T.S. No. 993 (1945). The President whether to enact the proposed legislation.
of the United States has concluded that domestic
courts should enforce this particular ICJ judgment. *4 Fourth, to permit this execution to proceed
Memorandum to the Attorney General (Feb. 28, forthwith places the United States irremediably in
2005), App. to Pet. for Cert. in Medellín v. Texas, No. violation of international law and breaks our treaty
06-984, p. 187a.
promises.

In Medellín v. Texas, 552 U.S. ---- (2008) (six to Fifth, the President of the United States has
three vote), this Court, while recognizing that the emphasized the importance of carrying out our treaty-
United States was bound by treaty to follow the ICJ's based obligations in this case; this fact, along with
determination as a matter of international law, held the President's responsibility for foreign affairs,
that that determination did not automatically bind the
makes the Executive's views of the matter pertinent.
courts of the United States as a matter of domestic
law in the absence of further congressional Sixth, different Members of this Court seem to have
legislation.Id., at ----.In reaching this conclusion the very different views of what this case is about. In my
majority, as well as the dissent, recognized that, view, the issue in this suit-what the majority describe
without the further hearing that the ICJ found
necessary, the execution would violate our as the “beginning premise”-is not whether a
international treaty commitments. See id., at ----. confession was unlawfully obtained from petitioner.
Cf. ante, at ----.Rather, the question before us is
whether the United States will carry out its
Petitioner, who is scheduled to be executed this international legal obligation to enforce the decision
evening, now asks us to delay the execution in order of the ICJ. That decision requires a further hearing to
to give Congress an opportunity to act to cure the determine whether a conceded violation of the
legal defect that the Court found in Medellín. In my
Vienna Convention (Texas' failure to inform
view, several factors counsel in favor of delay. First, petitioner of his rights under the Vienna Convention)
since this Court handed down Medellín, Mexico has was or was not harmless. Nor do I believe the
returned to the ICJ requesting this Nation's majority is correct insofar as it implies that Congress
compliance with its international obligations; and the has had four years to consider the matter. See
ICJ has asked that the United States “take all ibid.(“Congress has not progressed beyond the bare
measures necessary to en sure that [the Mexican
nationals] are not executed” unless and until they introduction of a bill in the four years since the ICJ
ruling and the four months since our ruling in
“receive review and reconsideration consistent” with Medellín v. Texas ”). To the contrary, until this
the ICJ's earlier Avena decision. See Request for Court's decision in Medellín a few months ago,a
Interpretation of the Judgment of 31 March 2004 in member of Congress might reasonably have believed
the Case Concerning Avena and Other Mexican there was no need for legislation because the relevant
Nationals (Mex. v. U.S.), 2008 I.C.J. No. 139, ¶ 80 treaty provisions were self-executing. It is not
(Order of July 16).
realistic to believe Congress could act to provide the
necessary legislative approval in only a few weeks'
Second, legislation has been introduced in Congress time.
seeking to provide the legi slative approval necessary
to transform our international legal obligations into In my view, we should seek the views of the Solicitor
binding domestic law. See Avena Case
Implementation Act of 2008, H.R. 6481, 110th General (which may well clarify these matters), and
we should grant a stay of sufficient length for careful
Cong., 2d Sess. (2008) (referred to committee, July consideration of those views, along with the other
14, 2008). briefs and materials filed in this suit. A sufficient
number of Justices having voted to secure those
Third, prior to Medellín, Congress may not have views (four), it is particularly disappointing that no

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 3821478.rtf --- S.Ct. ---- Page 4
--- S.Ct. ----, 2008 WL 3821478 (U.S.Tex.), 77 USLW 3073

Member of the majority has proved willing to
provide a courtesy vote for a stay so that we can
consider the Solicitor General's view once received.

As it is, the request will be mooted by petitioner's
execution, which execution, as I have said, will place
this Nation in violation of international law.

For the reasons set forth, I respectfully dissent.

U.S.Tex.,2008.
Medellin v. Texas
--- S.Ct. ----, 2008 WL 3821478 (U.S.Tex.), 77

USLW 3073

END OF DOCUMENT

© 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
2008 wl 3821478.rtf