Ex Parte Medellin , 280 S.W.3d 854 ( 2008 )

PRICE, J.,

concurring statement in which HOLCOMB and COCHRAN, JJ., joined except as to Part V.

The applicant alleges three circumstances he contends should qualify him to re-raise his Vienna Convention claim in yet another subsequent post-conviction application for writ of habeas corpus.¹ First, he points to the fact that Mexico has initiated another proceeding in the International Court of Justice (ICJ) seeking clarification of the Avena decision,² and that the ICJ has requested the United States to take precautionary measures (i.e., refrain from executing him) until it can render a decision. Second, he points to a determination by the Inter-American Commission on Human Rights (IACHR), an international tribunal that is an arm of the Organization of American States, that he was in fact prejudiced by the violation of his Vienna Convention rights.³ Third, he argues that it would violate due process to execute him now because 1) legislation is pending in Congress that would effectively make the Avena judgment binding on domestic courts in the United States, and 2) a state senator has indicated he will introduce a similar bill in the next state legislature. I agree that none of these circumstances justifies this Court in entertaining a subsequent writ application under Article 11.071, Section 5.⁴ For the reasons about to be given, I believe this Court’s hands are tied. But that does not mean that the Executive Branch cannot act.

I. International Court of Justice

In his first subsequent writ application, the applicant argued that, under the Supremacy Clause,⁵ the Avena decision constituted binding federal law that trumped the abuse-of-the-writ provisions of Article 11.071, Section 5. In our opinion in Ex parte Medellin, we expressly rejected that argument.⁶ Alternatively, the applicant argued that the Avena decision constituted new law and/or new facts that would justify a subsequent writ application under Article 11.071, Section 5. We rejected that argument in Medellin as well.⁷ Having rejected these arguments, we cannot very well hold that a request for precautionary measures pending a new proceeding that has been instituted in the ICJ that would merely clarify the holding of Avena either trumps, or, alternatively, falls under the ambit of, 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 certiori review of our decision.⁸ We must therefore heed the current legislative prohibition against entertaining a subsequent writ under these circumstances— unless and until Congress should act in such a way that we should be bound by the Avena judgment, notwithstanding contrary state law.

II. Inter-American Commission on Human Rights

The applicant also alleges that the IACHR’s decision that the violation of his Vienna Convention rights was prejudicial and amounted to a violation of the due process guarantees embodied in the 1948 Declaration of the Rights and Duties of Man, constitutes both new law and new facts for purposes of Article 11.071, Section 5. But in Medellin, we held that the Avena decision constituted law, not fact, and the same must surely be said of any decision of the IACHR.⁹ With respect to new law, we held in Medellin that, to be cognizable under Article 11.071, Section 5, it must emanate from “a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state.”¹⁰ International tribunals are not included within this statutory ambit. In any event, it is not clear — and it has not been pled here — that a decision of the IACHR is binding on domestic courts in the same way that it has been arguable that a decision of the ICJ with respect to the Vienna Convention is binding under the Supremacy Clause by virtue of the Optional Protocol.¹¹ Thus, even if the IACHR judgment somehow constituted a new fact or law for purposes of Article 11.071, Section 5, notwithstanding what we said in Medellin, it is still not clear that by invoking it the applicant has presented anything that, even if true, would entitle him to relief.

III. Pending Legislation

The applicant alleges that on July 14, 2008, a bill was introduced in the House of Representatives, entitled the “Avena Case Implementation Act of 2008,” which would expressly provide for judicial remedies to carry out the treaty obligations that Avena construed the Vienna Convention to impose.¹² The applicant contends that to execute him while such legislation is pending would violate federal due process, given the fact that nobody disputes that the Avena decision, once implemented by Congress, would require domestic courts to undergo a review and reconsideration of his conviction and sentence before he could be executed.¹³ This is entirely too speculative to support a due process claim. The applicant has no expectation that the proposed legislation will be enacted. Until such a statute is passed, the Avena decision is not binding; and if Avena is not binding, the applicant cannot predicate a due process claim upon it. Again, the applicant simply fails to state facts that would entitle him to habeas corpus relief. Any claim based upon legislation that might be introduced at the next legislative session in Texas suffers a similar fate.

IV. Original Application for Writ of Habeas Corpus

The applicant urges us to by-pass the abuse-of-the-writ provisions of Article 11.071, Section 5, by simply treating his application as an invocation of our original writ jurisdiction. This we may not do. It is indisputable that the applicant is challenging the validity of his conviction and death sentence. We have made it clear that under such circumstances we are bound to entertain any post-conviction writ of habeas corpus only under the purview of the procedures set out in Article 11.071— including the abuse-of-the-writ provisions in Article 11.071, Section 5.¹⁴

V. Executive Clemency

For all of the above reasons, this Court is not at liberty to stop the applicant’s execution. But the Governor is. The applicant informs us that he has requested that the Board of Pardons and Paroles 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 in Congress.¹⁵ Moreover, the Governor himself may grant a 30-day reprieve even absent a recommendation from the Board.¹⁶ It would be an embarrassment and a shame to the people of Texas and the rest of the country (albeit not presently unconstitutional) 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. The Executive Branch most appropriately exercises its clemency authority when the judicial branch finds itself powerless to rectify an obvious and manifest injustice. This, I think, is such a situation, and I would urge the Board and the Governor to act.

1 . Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820.

2 . Case Concerning Avena and Other Mexican Nationals (Mex.v.U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31).

3 . Medellin v. United States, Case 12.644, Inter-Am. C.H.R., Report No. 45/08 OEA/ Ser/L/V/II.132, doc. 21 (2008).

4 . TexCode Crim. Proc. art. 11.071, § 5.

5 . U.S. Const, art. II, § 2, cl. 2.

6 . 223 S.W.3d 315, 330-32 (Tex.Crim.App.2006).

7 . Id. at 348-352.

8 . Medellin v. Texas, - U.S. -, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008).

9 . Ex parte Medellin, supra, at 351.

10 .Id. at 352.

11 . Optional Protocol Concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations, Apr. 21, 1963, 21 U.S.T. 325, T.I.A.S. No. 6820. "By ratifying the Optional Protocol to the Vienna Convention, the United States consented to the specific jurisdiction of the ICJ with respect to claims arising out of the Vienna Convention.” Medellin v. Texas, supra, 128 S.Ct. at 1354.

12 . As introduced in the House of Representatives, and referred to the Judiciary Committee, the bill reads:

SECTION 1. SHORT TITLE.

This Act may be cited as the "Avena Case Implementation Act of2008”.

SECTION 2. JUDICIAL REMEDY.

(a) Civil Action. — Any person whose rights are infringed by a violation by any nonfor-eign governmental authority of Article 39 of the Vienna Convention on Consular Relations may in a civil action obtain appropriate relief.

(b) Nature of Relief.. — Appropriate relief for the purposes of this section means—

(1) any declaratory or equitable relief necessaiy to secure the rights; and

(2) in any case where the plaintiff is convicted of a criminal offense where the violation occurs during and in relation to the investigation or prosecution of the offense, any relief required to remedy the harm done by the violation, including the vitiation of the conviction or sentence where appropriate.

(c) Application. — This Act applies with respect to violations occurring before, on, or after the date of the enactment of this Act.

13 .In Medellin v. Texas, supra, 128 S.Ct. at 1356, the Supreme Court observed, "No one disputes that the Avena decision — a decision that 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.” But the Supreme Court held that implementing legislation was required before the particular international law obligation embodied in Article 36 of the Vienna Convention as construed by the ICJ in Avena would have binding domestic legal effect. See, e.g., id. at 1357, 1367 ("Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not binding domestic law. * * * In sum, 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.”).

14 .Ex parte Smith, 977 S.W.2d 610, 611 (Tex.Crim.App.1998), citing Ex parte Davis, 947 S.W.2d 216, 221, 223 (Tex.Crim.App.1996) (Opinion of McCormick, P.J.) (“the Legislature clearly has intended for Article 11.071 to provide the exclusive means by which this Court may exercise its original habeas corpus jurisdiction in death penalty cases.”).

15 . Tex. Const, art. IV, § 11(b); 37 TAC §§ 143.41(b) & (c); §§ 143.43(f)(1) & (j)(l).

16 . Tex. Const, art. IV, § 11(b); 37 TAC § 143.41(a).