Sue Hartigan <[EMAIL PROTECTED]> writes:
In a Per Curiam decision, dated last Tuesday, but only released
through Project Hermes today, the Court denied the several
motions by convicted murderer Breard and Paraguay seeking a
stay of Breard's execution pending the outcome of a proceeding
before the International Court of Justice. Breard, executed by
the Commonwealth of Virginia only two hours after the Court's
decision last week was a Paraguayan national. He and Paraguay
had argued first before Federal Courts and then with the
International Court of Justice that Virginia's failure to
observe the Vienna Convention provided grounds for upsetting
the original proceeding.
The Vienna Convention, signed by more than 130 nations
including the U.S., provides in Article 36 that whenever
a citizen of a signatory country is arrested by another
signatory, police must immediately notify the citizen's
consulate.
Such notification did not occur in Breard's case.
On April 9, the International Court of Justice noted
jurisdiction of Paraguay's complaint and issued an
order requesting that the United States "take all measures
at its disposal to ensure that Angel Francisco Breard is
not executed pending the final decision in these
proceedings...."
The Court's Per Curiam decision notes that Breard failed to
raise the treaty issue before the Virginia courts. It also
concludes that even if Breard's Vienna Convention claim
had been properly raised and proven, there was no evidence
it had any likely effect on the trial.
Accompanying the Court's decision is a statement by Justice
Souter and dissents by Justices Stevens and Breyer.
Per Curiam
SUPREME COURT OF THE UNITED STATES
Nos. 97-8214 (A-732), 97-1390 (A-738), 97-8660 (A-767), and No. 125,
Orig. (A-771)
v.
ON APPLICATION FOR STAY AND ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT THE
REPUBLIC OF PARAGUAY ET AL ., 97-1390 (A-738) v. JAMES S. GILMORE,
GOVERNOR OF VIRGINIA, ET AL . ON APPLICATION FOR STAY OR
INJUNCTION AND ON PETI - TION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT I N R E
ANGEL FRANCISCO BREARD 97-8660 (A-767) ON APPLICATION FOR STAY AND
ON PETITION FOR WRIT OF HABEAS CORPUS REPUBLIC OF PARAGUAY ET AL
., No. 125 Orig. (A-771) v. JAMES GILMORE, III, GOVERNOR OF VIRGINIA,
ET AL
. ON APPLICATION FOR TEMPORARY RESTRAINING ORDER OR
PRELIMINARY INJUNCTION AND ON MOTION FOR LEAVE TO FILE A BILL OF
COMPLAINT
[April 14, 1998]
PECURIAM
. Angel Francisco Breard is scheduled to be executed by the Commonwealth
of Virginia
this evening at 9:00 p.m. Breard, a citizen of Paraguay, came to the
United States in 1986,
at the age of 20. In 1992, Breard was charged with the attempted rape
and capital murder
of Ruth Dickie. At his trial in 1993, the State presented overwhelming
evidence of guilt,
including semen found on Dickie's body matching Breard's DNA profile and
hairs on
Dickie's body identical in all microscopic characteristics to hair
samples taken from
Breard. Breard chose to take the witness stand in his defense. During
his testimony,
Breard confessed to killing Dickie, but explained that he had only done
so because of a
Satanic curse placed on him by his father-in-law. Following a jury trial
in the Circuit Court
of Arlington County, Virginia, Breard was convicted of both charges and
sentenced to
death. On appeal, the Virginia Supreme Court affirmed Breard's
convictions and
sentences, Breard v. Commonwealth , 248 Va. 68, 445 S. E. 2d 670 (1994),
and we denied
certiorari, 513 U.S. 971 (1994). State collateral relief was
subsequently denied as well.
Breard then filed a motion for habeas relief under 28 U.S.C. § 2254 in
Federal District
Court on August 20, 1996. In that motion, Breard argued for the first
time that his
conviction and sentence should be overturned because of alleged
violations of the Vienna
Convention on Consular Relations (Vienna Convention), April 24, 1963,
[1970] 21 U. S. T.
77, T.I.A.S. No. 6820, at the time of his arrest. Specifically, Breard
alleged that the Vienna
Convention was violated when the arresting authorities failed to inform
him that, as a
foreign national, he had the right to contact the Paraguayan Consulate.
The District Court
rejected this claim, concluding that Breard procedurally defaulted the
claim when he failed
to raise it in state court and that Breard could not demonstrate cause
and prejudice for this
default. Breard v. Netherland , 949 F. Supp. 1255, 1266 (ED Va. 1996).
The Fourth Circuit
affirmed. Breard v. Pruett , 134 F. 3d 615, 620 (1998). Breard has
petitioned this Court for
a writ of certiorari.
In September 1996, the Republic of Paraguay, the Ambassador of Paraguay
to the United
States, and the Consul General of Paraguay to the United States
(collectively Paraguay)
brought suit in Federal District Court against certain Virginia
officials, alleging that their
separate rights under the Vienna Convention had been violated by the
Commonwealth's
failure to inform Breard of his rights under the treaty and to inform
the Paraguayan
consulate of Breard's arrest, conviction, and sentence. In addition, the
Consul General
asserted a parallel claim under 42 U.S.C. § 1983 alleging a denial of
his rights under the
Vienna Convention. The District Court concluded that it lacked
subject-matter jurisdiction
over these suits because Paraguay was not alleging a "continuing
violation of federal law"
and therefore could not bring its claims within the exception to
Eleventh Amendment
immunity established in Ex parte Young, 209 U.S. 123 (1908). Republic of
Paraguay v.
Allen , 949 F. Supp. 1269, 1272-1273 (ED Va. 1996). The Fourth Circuit
affirmed on
Eleventh Amendment grounds. Republic of Paraguay v. Allen , 134 F. 3d
622 (1998).
Paraguay has also petitioned this Court for a writ of certiorari.
On April 3, 1998, nearly five years after Breard's conviction became
final, the Republic of
Paraguay instituted proceedings against the United States in the
International Court of
Justice (ICJ), alleging that the United States violated the Vienna
Convention at the time of
Breard's arrest. On April 9, the ICJ noted jurisdiction and issued an
order requesting that
the United States "take all measures at its disposal to ensure that
Angel Francisco Breard
is not executed pending the final decision in these proceedings . . . ."
The ICJ set a
briefing schedule for this matter, with oral argument likely to be held
this November.
Breard then filed a petition for an original writ of habeas corpus and a
stay application in
this Court in order to "enforce" the ICJ's order. Paraguay filed a
motion for leave to file a
bill of complaint in this Court, citing this Court's original
jurisdiction over cases "affecting
Ambassadors . . . and Consuls." U. S. Const., Art. III, §2.
It is clear that Breard procedurally defaulted his claim, if any, under
the Vienna
Convention by failing to raise that claim in the state courts.
Nevertheless, in their petitions
for certiorari, both Breard and Paraguay contend that Breard's Vienna
Convention claim
may be heard in federal court because the Convention is the "supreme law
of the land"
and thus trumps the procedural default doctrine. Pet. for Cert. in No.
97-8214, pp. 15-18;
Pet. for Cert. in No. 97-1390, p. 14, n. 8. This argument is plainly
incorrect for two reasons.
First, while we should give respectful consideration to the
interpretation of an international
treaty rendered by an international court with jurisdiction to interpret
such, it has been
recognized in international law that, absent a clear and express
statement to the contrary,
the procedural rules of the forum State govern the implementation of the
treaty in that
State. See Sun Oil Co. v. Wortman, 486 U.S. 717, 723 (1988);
Volkswagenwerk
Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988); Soci#351t#351
Nationale
Industrielle A#351rospatiale v. United States Dist. Court for Southern
Dist. of Iowa, 482
U.S. 522, 539 (1987). This proposition is embodied in the Vienna
Convention itself, which
provides that the rights expressed in the Convention "shall be exercised
in conformity
with the laws and regulations of the receiving State," provided that
"said laws and
regulations must enable full effect to be given to the purposes for
which the rights
accorded under this Article are intended." Article 36(2), [1970] 21 U.
S. T., at 101. It is the
rule in this country that assertions of error in criminal proceedings
must first be raised in
state court in order to form the basis for relief in habeas. Wainwright
v. Sykes, 433 U.S. 72
(1977). Claims not so raised are considered defaulted. Ibid. By not
asserting his Vienna
Convention claim in state court, Breard failed to exercise his rights
under the Vienna
Convention in conformity with the laws of the United States and the
Commonwealth of
Virginia. Having failed to do so, he cannot raise a claim of violation
of those rights now on
federal habeas review.
Second, although treaties are recognized by our Constitution as the
supreme law of the
land, that status is no less true of provisions of the Constitution
itself, to which rules of
procedural default apply. We have held "that an Act of Congress . . . is
on a full parity with
a treaty, and that when a statute which is subsequent in time is
inconsistent with a treaty,
the statute to the extent of conflict renders the treaty null." Reid v.
Covert, 354 U.S. 1, 18
(1957) (plurality opinion); see also Whitney v. Robertson, 124 U.S. 190,
194 (1888)
(holding that if a treaty and a federal statute conflict, "the one last
in date will control the
other"). The Vienna Convention-which arguably confers on an individual
the right to
consular assistance following arresthas continuously been in effect
since 1969. But in
1996, before Breard filed his habeas petition raising claims under the
Vienna Convention,
Congress enacted the Antiterrorism and Effective Death Penalty Act
(AEDPA), which
provides that a habeas petitioner alleging that he is held in violation
of "treaties of the
United States" will, as a general rule, not be afforded an evidentiary
hearing if he "has
failed to develop the factual basis of [the] claim in State court
proceedings." 28 U. S. C. A.
§§ 2254(a), (e)(2) (Supp. 1998). Breard's ability to obtain relief based
on violations of the
Vienna Convention is subject to this subsequently-enacted rule, just as
any claim arising
under the United States Constitution would be. This rule prevents Breard
from
establishing that the violation of his Vienna Convention rights
prejudiced him. Without a
hearing, Breard cannot establish how the Consul would have advised him,
how the advice
of his attorneys differed from the advice the Consul could have pro
vided, and what factors
he considered in electing to reject the plea bargain that the State
offered him. That
limitation, Breard also argues, is not justified because his Vienna
Convention claims were
so novel that he could not have discovered them any earlier. Assuming
that were true,
such novel claims would be barred on habeas review under Teague v. Lane,
489 U.S. 288
(1989).
Even were Breard's Vienna Convention claim properly raised and proven,
it is extremely
doubtful that the violation should result in the overturning of a final
judgment of conviction
without some showing that the violation had an effect on the trial.
Arizona v. Fulminante,
499 U.S. 279 (1991). In this case, no such showing could even arguably
be made. Breard
decided not to plead guilty and to testify at his own trial contrary to
the advice of his
attorneys, who were likely far better able to explain the United States
legal system to him
than any consular official would have been. Breard's asserted
prejudice-that had the
Vienna Convention been followed, he would have accepted the State's
offer to forgo the
death penalty in return for a plea of guilty-is far more speculative
than the claims of
prejudice courts routinely reject in those cases where an inmate alleges
that his plea of
guilty was infected by attorney error. See, e.g. , Hill v. Lockhart ,
474 U.S. 52, 59 (1985).
As for Paraguay's suits (both the original action and the case coming to
us on petition for
certiorari), neither the text nor the history of the Vienna Convention
clearly provides a
foreign nation a private right of action in United States courts to set
aside a criminal
conviction and sentence for violation of consular notification
provisions. The Eleventh
Amendment provides a separate reason why Paraguay's suit might not
succeed. That
Amendment's "fundamental principle" that "the States, in the absence of
consent, are
immune from suits brought against them . . . by a foreign State" was
enunciated in
Principality of Mon aco v. Mississippi, 292 U.S. 313, 329-330 (1934).
Though Paraguay
claims that its suit is within an exemption dealing with continuing
consequences of past
violations of federal rights, see Milliken v. Bradley, 433 U.S. 267
(1977), we do not agree.
The failure to notify the Paraguayan Consul occurred long ago and has no
continuing
effect. The causal link present in Milliken is absent in this case.
Insofar as the Consul General seeks to base his claims on §1983, his
suit is not cognizable.
Section 1983 provides a cause of action to any "person within the
jurisdiction" of the
United States for the deprivation "of any rights, privileges, or
immunities secured by the
Constitution and laws." As an initial matter, it is clear that Paraguay
is not authorized to
bring suit under §1983. Paraguay is not a "person" as that term is used
in §1983. See
Moor v. County of Alameda, 411 U.S. 693, 699 (1973); South Carolina v.
Katzenbach, 383
U.S. 301, 323-324 (1966); cf. Will v. Michigan Dept. of State Police,
491 U.S. 58 (1989).
Nor is Paraguay "within the jurisdiction" of the United States. And
since the Consul
General is acting only in his official capacity, he has no greater
ability to proceed under
§1983 than does the country he represents. Any rights that the Consul
General might have
by virtue of the Vienna Convention exist for the benefit of Paraguay,
not for him as an
individual.
It is unfortunate that this matter comes before us while proceedings are
pending before
the ICJ that might have been brought to that court earlier. Nonetheless,
this Court must
decide questions presented to it on the basis of law. The Executive
Branch, on the other
hand, in exercising its authority over foreign relations may, and in
this case did, utilize
diplomatic discussion with Paraguay. Last night the Secretary of State
sent a letter to the
Governor of Virginia requesting that he stay Breard's execution. If the
Governor wishes
to wait for the decision of the ICJ, that is his prerogative. But
nothing in our existing case
law allows us to make that choice for him.
For the foregoing reasons, we deny the petition for an original writ of
habeas corpus, the
motion for leave to file a bill of complaint, the petitions for
certiorari, and the
accompanying stay applications filed by Breard and Paraguay.
Statement of JUSTICE SOUTER .
I agree with the Court that the lack of any reasonably arguable causal
connection between
the alleged treaty violations and Breard's conviction and sentence
disentitle him to relief
on any theory offered. Moreover, I have substantial doubts that either
Paraguay or any
official acting for it is a "person" within the meaning of 42 U.S.C. §
1983 and that the
Vienna Convention is enforceable in any judicial proceeding now
underway. For these
reasons, I believe the stay requests should be denied, with the result
that Paraguay's
claims will be mooted. Accordingly, I have voted to deny Paraguay's and
Breard's
respective petitions for certiorari (Nos. 97-1390 and 97-8214),
Paraguay's motion for leave
to file a bill of complaint (No. 125 Orig.), Breard's application for an
original writ of habeas
corpus (No. 97-8660), and the associated requests for a stay of
execution.
JUSTICE STEVENS , dissenting.
The Court of Appeals' decision denying petitioner's first application
for a federal writ of
habeas corpus became final on February 18, 1998. Under this Court's
Rules, a timely
petition for a writ of certiorari to review that decision could have
been filed as late as May
19, 1998. See Rule 13.1 ("[A] petition for a writ of certiorari to
review a judgment in any
case, civil or criminal, entered by . . . a United States court of
appeals . . . is timely when it
is filed with the Clerk of this Court within 90 days after entry of the
judgment"). Ordinary
review of that petition pursuant to our Rules would have given us
additional time
thereafter to consider its merits in the light of the response filed by
the Commonwealth of
Virginia. We have, however, been deprived of the normal time for
considered deliberation
by the Commonwealth's decision to set the date of petitioner's execution
for today. There
is no compelling reason for refusing to follow the procedures that we
have adopted for the
orderly disposition of noncapital cases. Indeed, the international
aspects of this case
provide an additional reason for adhering to our established Rules and
procedures. I would
therefore grant the applications for a stay, and I respectfully dissent
from the decision to
act hastily rather than with the deliberation that is appropriate in a
case of this character.
JUSTICE BREYER , dissenting.
In my view, several of the issues raised here are of sufficient
difficulty to warrant less
speedy consideration. Breard argues, for example, that the novelty of
his Vienna
Convention claim is sufficient to create "cause" for his having failed
to present that claim
to the Virginia state courts. Pet. for Cert. in No. 97-8214, at pp.
20-22. He might add that
the nature of his claim, were we to accept it, is such as to create a
"watershed rule of
criminal procedure," which might overcome the bar to consideration
otherwise posed by
Teague v. Lane, 489 U.S. 288, 311 (1989). He additionally says that what
the Solicitor
General describes as Virginia's violation of the Convention "prejudiced"
him by isolating
him at a critical moment from Consular Officials who might have advised
him to try to
avoid the death penalty by pleading guilty. Pet. for Cert. in No.
97-8214, at p. 22; see Brief
of United States Amicus Curiae 12 ("[T]he Executive Branch has conceded
that the
Vienna Convention was violated"). I cannot say, without examining the
record more fully,
that these arguments are obviously without merit. Nor am I willing to
accept without fuller
briefing and consideration the positions taken by the majority on all of
the sometimes
difficult issues that the majority addresses.
At the same time, the international aspects of the case have provided us
with the
advantage of additional briefing even in the short time available. More
time would likely
mean additional briefing and argument, perhaps, for example, on the
potential relevance of
proceedings in an international forum.
Finally, as JUSTICE STEVENS points out, Virginia is now pursuing an
execution schedule
that leaves less time for argument and for Court consideration than the
Court's rules
provide for ordinary cases. Like JUSTICE STEVENS , I can find no special
reason here
to truncate the period of time that the Court's rules would otherwise
make available.
For these reasons taken together I would grant the requested stay of
execution and
consider the petitions for certiorari in the ordinary course.
--
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