The Supreme Court Backs Away from a Consular Convention Case
May 30, 2005
JosÃ© Ernesto MedellÃn, a Mexican national, was convicted and sentenced to death by a Texas court for participating in the gang rape and murder of two girls in 1993. After an unsuccessful appeal to the Texas Court of Criminal Appeals, he filed for a writ of habeas corpus in the state court, claiming for the first time that Texas officials had failed to notify him of his right to communicate with the Mexican consulate after his arrest, as required by the Vienna Convention on Consular Relations (the Consular Convention). The Texas courts rejected his claim. He then filed a federal habeas corpus petition, again raising the Consular Convention claim.
In 2004 the U.S. Supreme Court granted certiorari in his case, to decide (a) whether a federal court is bound by the International Court of Justice's ruling in the Avena case that courts in the United States must reconsider his claim for relief arising from the U.S. violation of the Consular Convention, or (b) whether a federal court should in any event give effect to the ICJ ruling as a matter of comity and uniform treaty interpretation. After the Supreme Court had granted certiorari, President Bush determined that the United States would discharge its international obligation under the Avena decision by having state courts give effect to the decision (which also applied to 50 other Mexican nationals) in accordance with principles of comity. A previous ASIL Insight discussed the legal significance of the President's determination. After the President made his determination, MedellÃn relied on it in a new application for a writ of habeas corpus in the Texas Court of Criminal Appeals. That application is pending.
On May 23, 2005, the Supreme Court, in a per curiam (unsigned) opinion, dismissed its own writ of certiorari as improvidently granted.  Four Justices would have preferred simply to stay the proceedings in the Supreme Court until the Texas courts have considered MedellÃn's habeas corpus application, but they could not muster a majority for that option. One of them (Justice Ginsburg) joined the majority; the other three (Justices Breyer, Stevens and Souter) joined Justice O'Connor in dissent, arguing that a remand to the Federal Court of Appeals for further proceedings would be preferable to dismissal of the writ of certiorari.
The reason given by the majority for dismissing the writ was that there were several procedural hurdles that MedellÃn would have to surmount before he could qualify for federal habeas corpus, and "In light of the possibility that the Texas courts will provide MedellÃn with the review he seeks pursuant to the Avena judgment and the President's memorandum, and the potential for review in this Court once the Texas courts have heard and decided MedellÃn's pending action,"  it would be unwise to try to resolve the procedural issues and, possibly, the merits, without giving Texas courts the opportunity to act.
One cannot be sure at this point what the Texas courts will do. There are several possibilities, including: (1) declining to reconsider MedellÃn?\'s claim on procedural grounds, which could include the ground that the claim has already been decided against MedellÃn in Texas and neither the ICJ's judgment nor the President's determination is binding on a state court (since the ICJ is not a U.S. court and since it could be argued that the President does not have constitutional authority to determine what a state court must do in this case); (2) reconsidering MedellÃn's claim as a matter of comity (i.e. respect) toward the ICJ's judgment and in deference to the President's determination, but deciding that the Consular Convention does not give individuals standing to assert rights based on it (a point left open by the Supreme Court in its previous Breard decision, but implicitly decided in favor of the individuals by both the ICJ and the President); (3) reconsidering MedellÃn's claim as a matter of comity, and deciding that he does have standing to assert rights based on the Convention; or (4) accepting the argument that MedellÃn's claim must be reconsidered not just as a matter of comity, but as a matter of legal obligation stemming from the ICJ judgment, the President's determination and the U.S. treaty commitment to accept the ICJ's jurisdiction over disputes under the Convention, including this specific dispute. In this fourth scenario, the treaty commitment and the President's implementation of it would override any inconsistent state law, so the Texas court would be bound by the implicit ruling in the Avena case that individuals have standing to assert rights based on the Convention.
In either the third or fourth scenario above, the Texas court would be free to determine whether or not MedellÃn was actually harmed by Texas' failure to comply with the Convention's notification provisions at the time of his arrest. If the court determines that he was harmed, it would then decide whether he should have a new hearing on the murder charge or the sentence. If it determines that he was not harmed, it would presumably allow the previous conviction and sentence to stand.
Since the Supreme Court majority expressly kept open the possibility that certiorari could again be granted after the Texas courts have decided MedellÃn's state habeas corpus claim, it is quite possible that we have not yet heard its last word in this case. It is hazardous to predict what the Supreme Court might do once the Texas courts have had the opportunity to reconsider MedellÃn's claim. The members of the slim majority in the current phase of the case did say in their per curiam opinion that "perhaps most importantly, the state trial court [in the earlier phase of the case] found that MedellÃn 'fail[ed] to show that he was harmed by any lack of notification to the Mexican consulate concerning his arrest for capital murder; [MedellÃn] was provided with effective legal representation upon [his] request; and [his] constitutional rights were safeguarded.'" In a footnote, they added that the Federal District Court reviewing the state court's finding observed that MedellÃn's allegations of prejudice were speculative. It appears, however, that MedellÃn has never had a state court hearing on his claim that he was harmed by the violation of the Convention. It is possible that the Supreme Court's willingness to grant certiorari the next time around could turn on how the Texas courts deal with this issue.
Justice O'Connor's opinion for the four dissenting Justices recognized that if the case were remanded to the Federal Court of Appeals, as she thought it should be, the Court of Appeals might decide to hold the case on its docket until the habeas corpus application in the Texas court is decided. But she went on to discuss several issues, including interpretation of some sections of the federal Antiterrorism and Effective Death Penalty Act of 1996. From an international law standpoint, the most interesting segment of her dissenting opinion pointed out that Article 36 of the Consular Convention (the article that requires notification of the consulate upon request and notification to the arrested foreign national of the right to communicate with the consulate) is self-executing, i.e. it has the same effect in domestic U.S. law as an Act of Congress would have. She then pointed out that a self-executing treaty provision does not necessarily confer standing on an individual to ask a court to enforce it. She discussed in some detail the question the Supreme Court left open in the Breard case--whether Article 36(1)(b) (the notification subparagraph of Article 36) confers a right on the individual or whether it simply regulates government-to-government consular relations. Although she discussed both sides of that question and declined to answer it at the present stage of the proceedings, she emphasized the clause in Article 36(1)(b) imposing an obligation to inform the individual "of his rights" under that subparagraph.
Justice Breyer, joined by Justice Stevens in a separate dissent, focused on the federal-state aspects of the case. He asserted that the President's determination that state courts should follow Avena, combined with the self-executing nature of the Consular Convention, the U.S. acceptance of the ICJ's jurisdiction when Avena was decided, the ICJ's directive that the United States give MedellÃn judicial reconsideration, and the U.S. undertaking in the U.N. Charter to comply with ICJ judgments in any case to which it is a party, combine to give MedellÃn an argument that Texas must follow the Avena decision in his case (the argument that could lead to scenario 4 above). The argument is similar to the one outlined in the previous ASIL Insight on the President's determination regarding the Consular Convention.
None of the Justices' opinions dealt with the question whether MedellÃn was actually harmed by the violation of the Consular Convention, beyond the observation in the per curiam opinion, as noted above, that this question is still in the case. If the Texas courts do not fully address it, one might expect the Supreme Court to grant certiorari again. 
Finally, since MedellÃn is just one of 51 Mexican nationals included in the ICJ's judgment in the Avena case, and since the others are not parties to his case in the Texas courts, it is possible that the Supreme Court will again be faced with issues stemming from the Avena judgment even if we have heard its last word in MedellÃn's case.
About the author
Frederic L. Kirgis, an ASIL member, is Law Alumni Association Professor of Law Emeritus at Washington and Lee University. He has written books and articles on international law, and is an honorary editor of the American Journal of International Law.
 ASIL Insight, President Bush's Determination Regarding Mexican Nationals and Consular Convention Rights, (March 2005). See also ASIL Insight, Consular Notification and the Death Penalty: The ICJ's Judgment in Avena, (April 2004).
 MedellÃn v. Dretke, 544 U.S. ____ (2005). For background, see N.Y. Times, May 24, 2005, p. A15.
 Slip opinion at p. 6.
 Breard v. Greene, 523 U.S. 371, 376 (1998).
 After the ICJ had decided the Avena case and after the President had made his determination that state courts should give effect to the ICJ's decision, Secretary of State Condoleeza Rice notified the United Nations that the United States was withdrawing from the Convention's Optional Protocol, which supplied the basis for the ICJ's jurisdiction over the United States in the Avena case. The withdrawal would not be effective until a reasonable time has passed -- perhaps as long as twelve months. See the Addendum to the ASIL Insight mentioned in note 1 above, on President Bush's Determination Regarding Mexican Nationals and Consular Convention Rights.
 MedellÃn v. Dretke, Supreme Court slip opinion at pp. 4-5.
 MedellÃn v. Dretke, slip opinion note 2.
 See Justice O'Connor's dissent, slip opinion at p. 10.
 28 U.S. Code Â§Â§ 2253(c) & 2254(d).
 See note 1, supra.
 It takes a vote of only four of the nine Justices to grant certiorari.