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Monday’s Argument in Medellin v. Dretke

This post was jointly authored with Danielle Goldstein [disclosure: Danielle assisted with the preparation of an amicus brief for the government of Mexico in support of petitioner]

Monday’s second case, Medellin v. Dretke, No. 04-5928, involves a little bit of everything – capital habeas proceedings, the International Court of Justice, treaty enforceability, executive authority, and even an overtone of federalism. Because the questions the Court will address are so intimately entwined with the procedural history of the case, a short overview is necessary before summarizing those questions and the parties’ (and government’s) arguments.

Medellin is a Mexican national who was convicted of murder and sentenced to death in a Texas court. Texas never notified Medellin that Article 36 of the Vienna Convention on Consular Relations (to which the U.S. is a party) entitled him to legal assistance from the Mexican consul, and the Mexican consular authorities were not made aware of his arrest, trial, or sentence until six weeks after his death sentence was affirmed by the Texas Court of Criminal Appeals.

Medellin brought first a state and then a federal habeas petition arguing that Texas had violated his rights under Article 36 of the Vienna Convention. Both courts denied the petitions, finding (1) Texas’s “contemporaneous objection” rule prevented Medellin from raising a Vienna Convention claim on collateral review since he did not assert it at trial, and (2) that in any event Medellin could not sue for a violation of the Vienna Convention, since it did not create any private, judicially enforceable rights.

While the federal habeas proceeding was pending, Mexico brought suit against the United States (at the International Court of Justice) on behalf of Medellin and 53 other Mexican nationals for breach of Article 36. Under the Vienna Convention’s Optional Protocol on Compulsory Settlement of Disputes (to which the US was a party until this month – more on this later), this dispute over the treaty’s application was adjudicated by the ICJ. By a vote of 14-1 (the “Avena decision”), the ICJ determined that the United States breached its Vienna Convention obligations with regard to Medellin and 50 other Mexican nationals, and (by a unanimous vote) ordered review and reconsideration of their sentences. The ICJ specifically found that procedural default rules could not be used to bar review of Medellin’s claim, and that the Vienna Convention does provide him with private, judicially enforceable rights.

Armed with the ICJ’s Avena decision, Medellin sought review of the denial of his federal habeas petition in the Fifth Circuit, which refused to issue a certificate of appealability (“COA”) – a jurisdictional requirement for a habeas petitioner seeking review of the merits of his claims by a court of appeals. With regard to the first question (whether the Vienna Convention claims had been defaulted), the Fifth Circuit held that the ICJ’s Avena decision could not control because it conflicted with the Supreme Court’s 1998 decision in Breard v. Greene, which held that Vienna Convention claims, like constitutional claims, are subject to the procedural default rules of state criminal courts. With regard to the second question (whether the Vienna Convention provides individually enforceable rights), the Fifth Circuit again refused to follow Avena, but this time cited its own circuit precedent, rather than a Supreme Court decision.

The Court granted cert. to resolve the two questions: (1) whether the Avena decision requires U.S. courts to review and reconsider Medellin’s Vienna Convention claims without regard to Texas’s procedural default rules; and (2) in the alternative, whether the interests in international judicial comity and uniform treaty interpretation require U.S. courts to give effect to the Avena decision (and a predecessor ICJ case addressing the same issue) notwithstanding those procedural default rules.

The petitioner’s brief argues that since the Vienna Convention is “self-executing” – that is, it requires no implementing legislation to be judicially enforceable – the Supremacy Clause requires United States courts to enforce it. Moreover, the petitioner argues that by signing the Optional Protocol, which expressly provides the ICJ with jurisdiction to resolve disputes about the interpretation or application of the Vienna Convention, the U.S. agreed to be bound by the ICJ’s decisions and that the ICJ decision in Avena “determines the extent of the treaty obligation, no less than if the decision were written into the treaty itself.” The petitioner also argues that Breard should not control this case since (1) here, unlike in Breard, the ICJ actually adjudicated petitioner’s rights, and (2) at the time of Breard, the ICJ had not yet considered the effect of procedural default rules on Article 36 rights. Finally, petitioner’s brief argues that principles of comity and respect for uniform treaty interpretation counsel in favor of applying the Avena decision. [As noted below, and for reasons explained below, petitioner subsequently requested a stay of the Supreme Court proceedings. The Court has not acted on this request, and will proceed with oral argument before ruling on the motion.]

Texas’s brief argues that Medellin’s Vienna Convention claim is procedurally barred by federal habeas rules (established by AEDPA and Teague v. Lane) and by the Court’s decision in Breard (which it believes should not be overruled). The state also argues that the Avena decision cannot supercede federal law because the Vienna Convention does not provide individual, judicially enforceable rights, and because its Optional Protocol is not self-executing. Finally, the state argues that comity concerns do not justify applying decisions of foreign tribunals to control legal affairs within the U.S.’s borders.

The litigation took an important and interesting turn when the United States filed its amicus brief in support of Texas, arguing that the Court should either affirm the judgment below or dismiss the writ of certiorari as improvidently granted. First, the government argues that Medellin is not entitled to obtain a COA, which is required to address the merits of his case on appeal, because a COA may not be issued to review treaty claims. More importantly, the government argues that the Avena decision does not bind U.S. courts since neither the Vienna Convention nor the Optional Protocol grants any private, judicially enforceable rights. Instead, the government argues that “[i]t is for the President, not the courts, to determine whether the United States should comply with the decision, and, if so, how.”

After asserting the exclusive right to determine whether and how the U.S. will comply with the decision of the ICJ, the President (in a somewhat surprising move) issued a presidential determination declaring that the U.S. will abide by the Avena decision, but stated that the review of those 51 convictions should take place in state courts. The government asserts that the President’s determination “has independent legal force and effect,” and thus the Supremacy Clause requires state courts to follow the directive regardless of their own procedural default rules. (Marty offers a more detailed summary of the U.S.’s brief and the presidential determination here).

Then things got really interesting.

First, the State of Texas strenuously disagreed with the President’s conclusion. Second, the United States (apparently to avoid this sort of problem in the future) notified the Court that it had withdrawn from the Optional Protocol that gave the ICJ jurisdiction in Avena. (Lyle summarizes that filing here). Third, petitioner then requested a stay of the Supreme Court proceedings to pursue enforcement of the Avena decision, pursuant to the memorandum, in Texas courts. However, it appears that oral argument, at least, will go forward notwithstanding the President’s memorandum.

At that oral argument:

Petitioner (Medellin) will be represented by Donald F. Donovan of New York, NY.

Respondent (Texas) will be represented by its Solicitor General, R. Ted Cruz of Austin, TX.

The United States as amicus curiae in support of Texas will be represented by Deputy Solicitor General Michael R. Dreeben of Washington, DC.