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Garcia V. Texas (U.S. Sup. Ct.)
Published online by Cambridge University Press: 20 January 2017
On July 7, 2011, the United States Supreme Court declined to stay the execution of Humberto Leal García, a Mexican national who had been convicted some sixteen years ago in Texas of murder.1 Relying on the decision of the International Court of Justice (‘‘ICJ’’) in the Avena case,2 García contended that the United States had violated his right to consular notification and access under the Vienna Convention on Consular Relations (‘‘Consular Convention’’).3 He sought the stay so that the U.S. Congress could consider enactment of proposed legislation to implement the ICJ decision.4 In a 5-4 decision, the Court rejected his argument, stating that ‘‘[t]he Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment.’’5 García was executed by lethal injection that evening.
* This text was reproduced and reformatted from the text available at the U.S. Supreme Court website (visited Jan. 26, 2012) http://www.supremecourt.gov/opinions/10pdf/11-5001.pdf.
1 García v. Texas, 564 U.S. _, 131 S. Ct. 2866, 2011 WL 2651245 (2011) (per curiam, from which Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented). García had been convicted in July 1995 in Bexar County, Texas of raping and murdering sixteen-year-old Adria Sauceda. The history of his indictment, trial, conviction, and appeals, including several state and federal habeas corpus proceedings, is detailed in García v. Thaler, 793 F. Supp. 2d 909 (W.D. Tex. 2011). On appeal from that decision, the Court of Appeals held that petitioner did not have a due process right to delay his execution until proposed federal legislation implementing the ICJ’s Avena decision became law and that he was not entitled to a stay of execution. García v. Thaler, 2011 WL 2582880 (5th Cir. June 30, 2011). García sought a writ of certiorari from the U.S. Supreme Court in response to that decision as well as the refusal of the Texas Court of Criminal Appeals to provide post-conviction relief and a stay. Ex parte Humberto Leal, 2011 WL 2581917 (June 27, 2011).
2 Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J. 12 (Mar. 31), 43 I.L.M. 581 (2004).
3 Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 [hereinafter Consular Convention]. The United States became a party to the Consular Convention in 1969.
4 See S. 1194, Proposed Consular Notification Compliance Act, introduced by Sen. Patrick Leahy (D.Vt.) on June 14, 2011. Cong. Rec. S 3779-3783. The bill was referred to the Senate Committee on the Judiciary, which held a hearing on July 27, 2011. To date, no further action has been taken on the bill.
5 García, v. Texas, 131 S. Ct. at 2867, 2011 WL at *1.
6 See, e.g., Vienna Convention on Consular Relations (Para. v. U.S.), 1998 I.C.J. 248 (Apr. 9); LaGrand (Ger. v. U.S.), 2001 I.C.J. 466 (June 27), 40 I.L.M. 1069 (2001).
7 Avena and Other Mexican Nationals (Mexico v. U.S.), Provisional Measures, Order of 5 February 2003, 2003 I.C.J. Rep. 77, ¶ 55, 42 I.L.M. 309 (2003). The ICJ’s jurisdiction was founded on the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 325, 326, 596 U.N.T.S. 487, which the United States had ratified in 1969 when it joined the Consular Convention itself. In the wake of the Avena decision, the United States denounced the Optional Protocol in 2005. See John Quigley, The United States’ Withdrawal From International Court of Justice Jurisdiction in Consular Cases: Reasons and Consequences, 19 Duke J. Comp. & Int’l L. 263 (2009).
8 Avena and Other Mexican Nationals, supra note 7, at ¶ 121. See generally William J. Aceves, Consular Notification and the Death Penalty: The ICJ’s Judgment in Avena, ASIL Insight (Apr. 2004), available at http://www.asil.org/insigh130. cfm.
9 See generally, Department of State, Consular Notification and Access Manual (3rd ed. 2010), available at http://travel.state.gov/law/consular/consular_753.html.
10 See, e.g., Medellín v. Dretke, 544 U.S. 660, 666 (2005) (under 28 U.S.C. §§ 2254(b)(1)(A) and (b)(3), “Medellín can seek federal habeas relief only on claims that have been exhausted in state court”). See also Sanchez-Llamas v. Oregon, 548 U.S. 331, 358 (2006) (Article 36 claims are subject to the same procedural default rules that apply generally to other federal-law claims); Sandoval v. United States, 574 F.3d 847 (7th Cir. 2009) (claim that government violated defendant’s rights under Article 36 was procedurally defaulted where claim had not been raised at trial or on direct appeal and movant failed to demonstrate cause or actual prejudice). As the Sandoval decision indicates, claims of actual prejudice (where substantiated) may find traction. Cf. Castrejon v. United States, 2011 WL 3241817 (S.D. Ala., June 28, 2011); U.S. ex rel. Caballero v. Hardy, 2011 WL 4585586, at *6 (N.D. Ill., Sept. 30, 2011) (“A federal court, however, may excuse procedural default if a petitioner can show either cause for the default and actual prejudice as a result of the alleged violation of federal law, or can demonstrate that failure to consider the claim will result in a fundamental miscarriage of justice.”).
11 See Aceves, supra note 8. For additional information, see Frederic L. Kirgis, Addendum to ASIL Insight, President Bush’s Determination Regarding Mexican Nationals and Consular Convention Rights, ASIL Insight (Mar. 2005), available at http://www.asil.org/insights050309a.cfm.
12 See John R. Crook, Texas Court Rejects Presidential Order to Review Consular Notification Death Cases, in Contemporary Practice of the United States Relating to International Law, 101 Am. J. Int’l L. 478 (2008).
13 Medellín v. Texas, 552 U.S. 491 (2008).
14 Id. at 498-99.
15 Id. at 525-26.
16 Medellín v. Texas, 554 U.S. 759 (2008). 17 Id. at 760.
18 After the Supreme Court’s first Medellín decision, and in the face of Texas’ determination to proceed with the execution, Mexico returned to the ICJ for an additional ruling to ensure that no Mexican national entitled to review and reconsideration under the Avena Judgment would be executed unless and until that review and reconsideration had been completed and it had been determined that no prejudice resulted from the violation. On July 16, 2008, the ICJ granted Mexico’s request for provisional measures, requiring the United States to take “all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas,CésarRoberto FierroReyna,RubénRamírezCárdenas, Humberto Leal García, and Roberto Moreno Ramos are not executed pending judgment” on the additional Mexican request. In a decision rendered five months after Medellín’s execution, the ICJ unanimously found that the United States had breached its obligation under the order of provisional measures and (by eleven votes to one) re-affirmed “the continuing binding character of the obligations of the United States of America under paragraph 153 (9) of the Avena Judgment.” Request for Interpretation of the Judgment of 31 March 2004 in the Case Concerning Avena and Other Mexican Nationals, Judgment of 19 January 2009 (Mex. v. U.S.), Judgment, 2009 I.C.J. 3, available at http://www.icj-cij.org/docket/files/139/14939.pdf.
19 S. 1194, Proposed Consular Notification Compliance Act, Cong. Rec. S 3779-3783, § 3.
20 Id. § 4(b).
21 See Hearing Regarding S. 1194, the Consular Notification Compliance Act Committee on the Judiciary, 112th Cong (2011-2012) (statement of Patrick F. Kennedy, Under Secretary of State, and Bruce C. Swartz, Deputy Assistant Attorney General), available at http://www.judiciary.senate.gov/pdf/11-7-27%20Kennedy%20Testimony.pdf. A video of the hearing is accessible at http://www.judiciary.senate.gov/hearings/hearing.cfm?id=3d9031b47812de2592c3baeba62c686d.
22 See Hearing Regarding S. 1194, the Consular Notification Compliance Act of 2011: Hearing “Fulfilling Our Treaty Obligations and Protecting Americans Abroad,” 112th Congress (2011-2012) (statement of David B. Rivkin, Jr., Esq., Baker Hostetler LLP, Washington, D.C.), available at http://www.judiciary.senate.gov/pdf/11-7-27%20Rivkin%20 Testimony.pdf. Referring to the Supreme Court’s decision in Missouri v. Holland, 252 U.S. 416 (1920), Rivkin stated that “[t]o the extent that Holland authorizes enactments like S. 1194—which is not at all clear—it is inconsistent with the constitutional structure and should be overruled.” Id. supra at 7.
23 Medellın v. Texas, 552 U.S. at 535 (Stevens, J., concurring) and 552 U.S. at 555 (Breyer, J, dissenting). See also S. Exec. Rep. No. 91-9 at 5 (1969).
24 For information about the Uniform Law Commission, see http://www.nccusl.org.
25 See Quarterly Report of the Uniform Law Commission (Mar. 2010), available at http://www.nccusl.org/Shared/newsletters/QuarterlyReport/ULCQR_Mar2010.htm. Alaska ULC Commissioner Grant Callow chairs the Study Committee.
26 Uniform Law Commission’s Committee on Scope and Program, Minutes: Committee on Scope and Program annual meeting (July 2011), available at http://www.uniformlaws. org/Shared/Minutes/scope070811mn.pdf.
27 See Supplemental Brief to the Petition for Writ of Certiorari to the Court of Criminal Appeals of Texas, 2011WL 2743202, and Brief Amicus Curiae of the Government of the United Mexican States in Support of Petitioner Humberto Leal García, 2011 WL 2581860.
28 García v. Texas, 131 S.Ct. at 2867. As indicated above, the Court had earlier rejected Jose Ernesto Medellín’s similar argument that he was entitled to a stay of execution on the grounds that either Congress or the Texas State Legislature might enact legislation implementing the Consular Convention thereby providing relief, with the observation that “[u]nder settled principles, these possibilities are too remote to justify an order from this Court staying the sentence imposed by the Texas courts.” Medellín v. Texas, 554 U.S. 759 (2008).
* The United States’ motion for leave to file an amicus brief is granted.