Sunday, 3 August 2008

ON PETITION FOR ORIGINAL WRIT OF HABEAS CORPUS - Jose Medellin

No. 08-_____

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IN THE

Supreme Court of the United States

--------------------------------- . ---------------------------------
IN RE JOSÉ ERNESTO MEDELLÍN,

Petitioner,

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ON PETITION FOR ORIGINAL WRIT OF HABEAS CORPUS
--------------------------------- . ---------------------------------

PETITION FOR WRIT OF HABEAS CORPUS

--------------------------------- . ---------------------------------

SANDRA L. BABCOCK DONALD FRANCIS DONOVAN
Clinical Professor of Law (Counsel of Record)
Northwestern University School of Law CATHERINE M. AMIRFAR
357 E. Chicago Avenue JILL VAN BERG
Chicago, Illinois 60611 WILLIAM C. WEEKS
Tel: (312) 503-0114 DEBEVOISE & PLIMPTON LLP

919 Third Avenue
New York, NY 10022-3916

(212) 909-6000
Attorneys for Petitioner

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CAPITAL CASE

QUESTIONS PRESENTED

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004

I.C.J. 12 (Mar. 31), the International Court of Justice determined that José Ernesto
Medellín and fifty other Mexican nationals under sentence of death in the United States
were entitled to receive judicial review and reconsideration of their convictions and
sentences in light of the violation of their rights under the Vienna Convention on
Consular Relations in their capital murder trials. In Medellín v. Texas, 128 S. Ct. 1346
(2008), this Court held that the United States is bound under Article 94(1) of the United
Nations Charter to comply with the Avena Judgment and settled the procedures by which,
as a matter of U.S. constitutional law, the international obligation to comply may be
given domestic effect. Specifically, this Court held that neither it nor the President had
the authority to execute the international obligation, which instead lies with the Congress.
In response to that ruling, legislation to implement Avena has been introduced in the U.S.
House of Representatives, yet the State of Texas, having scheduled Mr. Medellín’s
execution for August 5, 2008, has indicated that it intends to go forward with the
execution before Congress has had a reasonable opportunity to exercise its constitutional
prerogative to determine compliance.
This case presents the following questions:

1.
Whether Mr. Medellín’s Fourteenth Amendment right not to be deprived of his
life without due process of law entitles him to remain alive until Congress has had
a reasonable opportunity to exercise its constitutional prerogative to implement
the right to judicial review and reconsideration under Avena and Other Mexican
Nationals, so that he can secure access to a remedy to which he is entitled by
virtue of a binding international legal obligation of the United States;
2.
Whether the Court should grant a writ of habeas corpus to adjudicate Mr.
Medellín's claim on the merits, where he seeks relief pursuant to a binding
international legal obligation that the federal political branches seek to implement,
and where adequate relief cannot be obtained in any other form or from any other
court; and
3.
Whether the Court should recall and stay its mandate in Medellín v. Texas, 128 S.
Ct. 1346, not to revisit the merits, but to allow Congress a reasonable opportunity
to implement legislation consistent with the Court’s decision in that case.

ii

PARTIES

All parties to the proceedings below are named in the caption of the case.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED................................................................................................ i
PARTIES ............................................................................................................................ ii
TABLE OF CONTENTS................................................................................................... iii
TABLE OF AUTHORITIES ............................................................................................. iv
JURISDICTION ..................................................................................................................1
CONSTITUTIONAL, TREATY AND STATUTORY PROVISIONS

INVOLVED ...............................................................................................................1
STATEMENT OF THE CASE............................................................................................1

A. Avena and Subsequent Proceedings.........................................................................1
B. Medellín v. Texas .....................................................................................................3
C. Scheduling of Execution Date .................................................................................5
D. Subsequent Proceedings Before the International Court of Justice.........................5
E. Introduction of Congressional Legislation...............................................................8
F. Denial of Federal Habeas Relief..............................................................................8
G. Decision of the Inter-American Commission on Human Rights.............................9
H. Further Political and Diplomatic Efforts to Effect Compliance with the
Avena Judgment.....................................................................................................12
I. The Proceedings Below .........................................................................................13
REASONS FOR GRANTING A WRIT OF HABEAS CORPUS....................................14
I.
The Same Compelling Circumstances That Weigh In Favor of A Grant of A
Writ of Certiorari Weigh In Favor of a Grant of A Writ Under This Court’s
Original Habeas Powers. ..........................................................................................16
A. If A Writ Of Certiorari Is Unavailable, This Court Should Grant A Writ of
Habeas Corpus. ......................................................................................................16
B. Adequate Relief Cannot Be Obtained In Any Other Form Or From Any
Other Court. ...........................................................................................................18
CONCLUSION..................................................................................................................22

TABLE OF AUTHORITIES
Federal Cases:
Breard v. Greene, 523 U.S. 371 (1998).........................................................................................21
Ex parte Grossman, 267 U.S. 87 (1925)........................................................................................17
Felker v. Turpin, 518 U.S. 651 (1996)............................................................................... 17-18, 20
Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001) .............................................................................21
McCleskey v. Zant, 499 U.S. 467 (1991) .......................................................................................20
Medellin v. Dretke, 544 U.S. 660 (2005)............................................................................... passim
Medellin v. Quarterman, No. H-06-3688, 2008 U.S. Dist. LEXIS 55758 (S.D.

Tex. July 22, 2008) ..................................................................................................................19
Medellin v. Texas, 128 S. Ct. 1346 (2008) ............................................................................ passim
Sanchez-Llamas v. Oregon, 126 S. Ct. 2669 (2006)......................................................................21
State Cases:
Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004) ............................................................19
International Cases:

Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), 2004 I.C.J.
12 (Mar. 31) ..................................................................................................................... passim

Constitutional Provisions:

U.S. Const. art. II, § 2 ....................................................................................................................17
U.S. Const. art. VI, cl. 2.................................................................................................................20
Treaties and Federal Statutes:

28 U.S.C. § 2241.................................................................................................................... passim
28 U.S.C. § 2244................................................................................................................17, 19, 20
28 U.S.C. § 2255(e) .......................................................................................................................21

United Nations Charter, opened for signature June 26, 1945 T.S. No. 993, 59 Stat.
1031................................................................................................................................. passim

Other Authorities:

Supreme Court Rule 20.4(a) ..........................................................................................................18

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 2241.

CONSTITUTIONAL, TREATY AND STATUTORY PROVISIONS INVOLVED

This case involves the following provisions, which are reproduced beginning at
page 1a in the Appendix.

STATEMENT OF THE CASE

A. Avena and Subsequent Proceedings
In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.),
2004 I.C.J. 12 (Mar. 31) (“Avena”), the International Court of Justice (“ICJ”) determined
that Mr. Medellín and fifty other Mexican nationals under sentence of death in the United
States, whose rights to consular notification and access under the Vienna Convention on
Consular Relations had been violated in their capital murder trials, were entitled to
receive judicial review and reconsideration of their convictions and sentences in light of
the violations in their cases. On December 10, 2004, in response to Mr. Medellín’s
petition, this Court granted a writ of certiorari to decide whether, under the Supremacy
Clause of the Constitution, courts in the United States must give effect to the United
States’s treaty obligations to comply with the Judgment of the ICJ. Medellín v. Dretke,
543 U.S. 1032 (2004) (order granting writ of certiorari).

On February 28, 2005, before the case had been fully submitted, President George

W. Bush issued a written determination that the United States had a binding obligation
under international law to comply with Avena. Br. for U.S. as Amicus Curiae Supporting
Resp’t at App. 2, Medellin v. Dretke, 544 U.S. 660 (2005) (No. 04-5928). He also

2

determined that, to achieve compliance, state courts should provide review and
reconsideration to the fifty-one Mexican nationals named in the Avena Judgment,
including Mr. Medellín, pursuant to the criteria set forth by the ICJ, notwithstanding any
state procedural rules that might otherwise bar review of the claim on the merits.

In deference to the President’s determination, Mr. Medellín filed a motion to stay
his case in this Court, requesting that the case be held in abeyance while he exhausted in
state court his claims based on Avena and the President’s determination, neither of which
had been issued at the time of his first state post-conviction petition.

On May 23, 2005, this Court dismissed the writ of certiorari as improvidently
granted, in part because of the prospect of relief in Texas state court and in part because
of potential obstacles to reaching the merits posed by the procedural posture of the case
as then before the Court. Medellín v. Dretke, 544 U.S. 660, 662 (2005) (per curiam).

Following this Court’s dismissal, Mr. Medellín pursued relief in the Texas Court
of Criminal Appeals, where he argued that the treaty obligation to abide by the Avena
decision and the President’s determination to comply each constituted binding federal
law that, by virtue of the Supremacy Clause of the Constitution, preempted any
inconsistent provisions of state law. On November 15, 2006, the Court of Criminal
Appeals dismissed Mr. Medellín’s application, holding that neither the Avena Judgment
nor the President’s determination constituted preemptive federal law and that Mr.
Medellín was procedurally barred from seeking relief on a subsequent habeas application.
Ex parte Medellín, 223 S.W.3d 315 (Tex. Crim. App. 2006).

On April 30, 2007, on Mr. Medellín’s petition, the Court granted a writ of
certiorari to determine whether courts in the United States or the President had the
authority to execute the United States’s obligation to comply with Avena. Medellin v.
Texas, 127 S. Ct. 2129 (U.S. 2007) (order granting writ of certiorari).

B. Medellín v. Texas
In Medellín v. Texas, 128 S. Ct. 1346 (2008), the Court held that under Article
94(1) of the United Nations Charter, a valid treaty of the United States, the United States
has a binding international obligation to comply with Avena by providing review and
reconsideration to Mr. Medellín and the other Mexican nationals subject to that judgment.
Specifically, the Court observed that “no one disputes” that the obligation to abide by the
Avena judgment, which “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.” Id. at 1356. The Court
also expressly noted its agreement with the President as to the importance of United
States’s compliance with that obligation. Id. at 1367.

The Court held, however, that that international obligation had not yet been
validly executed as a matter of U.S. domestic law. First, courts are not empowered to
automatically enforce ICJ decisions as domestic law because the “sensitive foreign policy
decisions” of whether and how to comply are reserved for the he political branches. Id. at
1360. Second, the “array of political and diplomatic means available [to the President] to
enforce international obligations” does not include the power to “unilaterally convert[] a

non-self-executing treaty into a self-executing one.” Id. at 1368. Hence, “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.” Id. at 1367. Instead, an additional step by
the political branches is necessary, including action by Congress to pass implementing
legislation, id. at 1369, or by the President “by some other means, so long as they are
consistent with the Constitution,” id. at 1371.

Concurring in the judgment, Justice Stevens also noted that the United States’s
international obligation to provide review and reconsideration under the Avena Judgment
was undisputed. Id. at 1374. He urged action by Texas to “shoulder the primary
responsibility for protecting the honor and integrity of the Nation,” id. at 1374,
particularly where “the costs of refusing to respect the ICJ’s judgment are significant,” id.
at 1375.

Justice Breyer, joined by Justices Souter and Ginsburg, dissented, stating that the
Supremacy Clause of the U.S. Constitution required that the state courts comply with
Avena, since “the treaty obligations, and hence the judgment, resting as it does upon the
consent of the United States to the ICJ’s jurisdiction, bind[s] the courts no less than
would ‘an act of the [federal] legislature.’” Id. at 1376 (internal cites omitted). Like the
majority, Justice Breyer recognized that noncompliance would exact a heavy toll on the
United States. Id. at 1391.

C. Scheduling of Execution Date
Almost immediately following this Court’s decision, Texas state prosecutors
sought an execution date for Mr. Medellín. At a hearing before the Texas trial court on
May 5, 2008, Mr. Medellín requested that the court defer scheduling an execution date in
order to allow the national and state legislatures time to implement the Avena Judgment,
as this Court’s decision contemplated. Texas State Senator Rodney Ellis wrote to the
court to request that it defer setting a date in light of his intention to introduce legislation
by which Texas would comply with Avena as soon as the Texas Legislature reconvened
in January 2009. 15a-16a. On May 2, 2008, Ambassador Jeffrey Davidow, who holds
the rank of Career Ambassador (the highest rank available to diplomats) and served as an
ambassador for the United States in the administrations of Presidents Ronald Reagan,
George H.W. Bush, Bill Clinton, and George W. Bush, submitted a declaration
addressing the negative ramifications for U.S. foreign relations, including for the
protection of Americans abroad. The court declined to hear evidence and instead
scheduled Mr. Medellín’s execution for the first date available under state law. See 136a.
Hence, Mr. Medellín is scheduled to die by lethal injection on August 5, 2008.

D. Subsequent Proceedings Before the International Court of Justice
On June 5, 2008, in light of the action by Texas to execute Mr. Medellín without
having provided him review and reconsideration and the failure as of that date by the
United States effectively to implement the judgment within its domestic legal system,
Mexico instituted new proceedings in the International Court of Justice by filing a

Request for Interpretation of the Avena Judgment. See Application Instituting

Proceedings, Request for Interpretation of the Judgment of 31 March 2004 in the Case
Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), June 5, 2008.1 Mexico
asked the ICJ to declare that the United States has an obligation to use any and all means
necessary to provide that review before any execution is carried out. In conjunction with
its Request for Interpretation, Mexico also asked the ICJ to indicate provisional measures
with respect to Mr. Medellín and four other Mexican nationals named in the Avena
Judgment who face imminent execution in Texas.2 Mexico’s Request for Interpretation
of the Avena Judgment opens a new case before the ICJ and is currently pending review.

The ICJ held oral proceedings on the request for provisional measures on June 19
and 20, 2008. At argument, the Legal Adviser to the Secretary of State confirmed “that
the United States takes its international law obligation to comply with the Avena
Judgment seriously” and agreed that Avena requires the provision of review and
reconsideration prior to the imposition of any death sentence. See 90a; 92a; 93a.

On June 16, 2008, the ICJ rejected the United States’s request to dismiss the case
and granted Mexico’s request for provisional measures, directing the United States to
“take all measures necessary to ensure that Messrs. José Ernesto Medellín Rojas [and
four other Mexican nationals] are not executed pending judgment on the Request for

1
The parties’ written and oral pleadings and the judgment, orders and press releases of the International

Court of Justice in respect of the Request for Interpretation are available at http://www.icj

cij.org/docket/index.php?p1=3&p2=1&code=&case=139&k=11 (last visited July 30, 2008).

2
The four other Mexican nationals subject to the request for provisional measures have not received
execution dates but are eligible under state law to have dates scheduled.

interpretation submitted by the United Mexican States, unless and until these five
Mexican nationals receive review and reconsideration consistent with paragraphs 138 to
141 of the [Avena] Judgment.” 38a, ¶ 80(a). In particular, the Court noted

that the United States has recognized that, were any of the
Mexican nationals named in the request for the indication
of provisional measures to be executed without the
necessary review and reconsideration required under the
Avena Judgment, that would constitute a violation of
United States obligations under international law; … in
particular, the Agent of the United States declared before
the ICJ that “[t]o carry out Mr. Medellín’s sentence without
affording him the necessary review and reconsideration
obviously would be inconsistent with the Avena
Judgment[.]”

37a, ¶ 76. The Court further noted that “the Agent of the United States acknowledged
before the Court that ‘the United States would be responsible, clearly, under the principle
of State responsibility for the internationally wrongful actions of [state] officials[.]’” Id.
at ¶ 77. Nonetheless, commenting on reports of the ICJ’s Order in the press, Texas
Governor Perry’s office stated: “The world court has no standing in Texas and Texas is
not bound by a ruling or edict from a foreign court.” Allan Turner & Rosanna Ruiz,
Texas to World Court: Executions Are Still On, Houston Chron., July 17, 2008, at A1.
The submission of the United States in response to Mexico’s Request for Interpretation is
due on August 29, 2008. The case has been set on an expedited schedule and a decision
is likely to issue this year.

E. Introduction of Congressional Legislation
On July 14, 2008, following this Court’s decision in Medellín v. Texas, Members
of the House of Representatives introduced legislation to give the Avena Judgment
domestic legal effect. The “Avena Case Implementation Act of 2008” grants foreign
nationals such as Mr. Medellín a right to judicial review of their convictions and
sentences in light of Vienna Convention violations in their cases. 5a-6a. The proposed
bill specifically authorizes courts to provide “any relief required to remedy the harm done
by the violation [of rights under Article 36 of the Vienna Convention], including the
vitiation of the conviction or sentence where appropriate.” 6a, § 2. The bill was
introduced by Howard L. Berman, Chairman of the Committee for Foreign Affairs and
Vice Chairman of the Judiciary Committee, and referred to the Judiciary Committee for
consideration. Since that time, the Chairman of that Committee, John Conyers, Jr., and
Committee Members Zoe Lofgren and William D. Delahunt have joined as co-sponsors
of the bill.

The bill is now under review. On June 19, 2008, before the International Court of
Justice, the United States stated that “[g]iven the short legislative calendar for our
Congress this year, it [will] not be possible for both houses of our Congress to pass
legislation” implementing the Avena decision. 88a, ¶ 26.

F. Denial of Federal Habeas Relief
On November 21, 2006, to satisfy the applicable statute of limitations while his
first subsequent habeas application was pending in the Texas Court of Criminal Appeals,

Mr. Medellín filed a habeas petition in the U.S. District Court for the Southern District of
Texas, raising claims related to the enforceability of the Avena Judgment as a matter of
applicable treaties and the President’s 2005 determination to comply. After this Court
granted a writ of certiorari to review the denial of Mr. Medellín’s first subsequent
application, the district court stayed and administratively closed Mr. Medellín’s case. On
July 22, 2008, the court reopened proceedings for the limited purpose of determining
jurisdiction over Mr. Medellín’s petition, and denied relief. Medellin v. Quarterman, No.
H-06-3688, 2008 U.S. Dist. LEXIS 55758 (S.D. Tex. July 22, 2008). The court
concluded that the federal habeas statute’s limitation on successive petitions prevented it
from considering Mr. Medellín’s petition on the merits without prior authorization from
the Court of Appeals. Id. at *7.

G. Decision of the Inter-American Commission on Human Rights
On November 21, 2006, Mr. Medellín filed a petition before the Inter-American
Commission on Human Rights raising the violation of his consular rights as well as
several violations of the 1948 Declaration of the Rights and Duties of Man (“American
Declaration”). The Inter-American Commission is the principal human rights organ of
the Organization of American States (“OAS”) and is empowered to consider and evaluate
the merits of human rights violations raised by individuals from any OAS member state.
See Inter-American Commission on Human Rights, What is the IACHR?, at
http://www.cidh.oas.org/what.htm; see also Thomas Buergenthal, International Human

Rights in a Nutshell 174, 179, 181-82 (2d ed. 1995). As a member of the OAS, the
United States has recognized the Commission’s competence to consider such petitions.3

On December 6, 2006, the Commission issued precautionary measures—
analogous to a temporary injunction and similar to the provisional measures ordered by
the ICJ—calling upon the United States to take all measures necessary to preserve Mr.
Medellín’s life pending the Commission’s investigation of the allegations raised in his
petition. 74a-75a. After Mr. Medellín was scheduled for execution, the Commission
reiterated to the United States the precautionary measures it adopted in favor of Mr.
Medellín in 2006 and reminded the United States of its request that Mr. Medellín’s life be
preserved pending the investigation of his petition. 76a; see also 77a-79a.

Both Mr. Medellín and the United States filed written submissions and made oral
arguments to the Commission at a hearing conducted on March 7, 2008, at the
Commission headquarters in Washington, D.C. The Commission also considered
extensive documentary evidence, including many of the documents submitted to the court
below. On July 24, 2008, after reviewing the legal arguments of both parties and the
facts submitted in support of Mr. Medellín’s claims for relief, the Commission issued a

The United States has signed and ratified the Charter of the Organization of American States (“OAS
Charter”), Apr. 30, 1948, 2 U.S.T. 2394, as well as the Protocol of Buenos Aires that amended the
OAS Charter and established the Commission as a principal organ through which the OAS would
accomplish its purposes. Protocol of Buenos Aires, Feb. 27, 1967, 21 U.S.T. 607, T.I.A.S. No. 6847.
As ratified treaties of the United States, both instruments apply with equal force and supremacy to all
states, including Texas. U.S. Const. art. VI, cl. 2. The amended OAS Charter specifically provided
that “[t]here shall be an Inter-American Commission on Human Rights, whose principal function shall
be to promote the observance and protection of human rights and to serve as a consultative organ of
the Organization in these matters.” OAS Charter, art. 106. Under Article 145, the Inter-American
Commission is given the responsibility to “keep vigilance over the observance of human rights.” Id.,
art. 145.

preliminary report concluding, in pertinent part, that Mr. Medellín was prejudiced by the
violation of his rights to consular notification and assistance. Specifically, the
Commission found:

It is apparent from the record before the Commission that,
following [Mr.] Medellin[’s] conviction and sentencing,
consular officials were instrumental in gathering significant
evidence concerning [his] character and background. This
evidence, including information relating to [his] family life
as well as expert psychological reports, could have had a
decisive impact upon the jury’s evaluation of aggravating
and mitigating factors in [his] case[]. In the Commission’s
view, this information was clearly relevant to the jury’s
determination as to whether the death penalty was the
appropriate punishment in light of [his] particular
circumstances and those of the offense.

65a, ¶ 128. The Commission concluded that the United States’s obligation under Article
36(1) of the Vienna Convention to inform Mr. Medellín of his right to consular
notification and assistance constituted a fundamental component of the due process
standards to which he was entitled under the American Declaration, and that the United
States’s failure to respect and ensure this obligation deprived him of a criminal process
that satisfied the minimum standards of due process and a fair trial required by the
Declaration. 66a, ¶ 132.

As to remedies, the Commission recommended, among other things, that the
United States vacate Mr. Medellín’s death sentence and provide him with “an effective
remedy, which includes a new trial in accordance with the equality, due process and fair
trial protections prescribed under . . . the American Declaration, including the right to
competent legal representation.” 72a, ¶ 160. The Commission also reiterated its requests

of December 6, 2006, and January 30, 2007, that the United States take precautionary

measures to preserve Mr. Medellín’s life pending the implementation of the

Commission’s recommendations in the matter. 71a, ¶ 159.4

H.
Further Political and Diplomatic Efforts to Effect Compliance with
the Avena Judgment.
Since this Court issued its decision in Medellin v. Texas, the governments of

Mexico and the United States have resumed their efforts to achieve compliance with the

Avena Judgment. On June 17, 2008, Secretary of State Condoleezza Rice and Attorney

General Michael B. Mukasey asked for Texas’s help in complying with the Avena

Judgment. In a joint letter to Governor Rick Perry, the Secretary of State and Attorney

General stated:

The United States attaches great importance to complying with its
obligations under international law . . . . We continue to seek a
practical and timely way to carry out our nation’s international
legal obligation [under Avena], a goal that the United States needs
the assistance of Texas to achieve. In this connection, we
respectfully request that Texas take the steps necessary to give
effect to the Avena decision with respect to the convictions and
sentences addressed therein.

80a-81a. On July 18, 2008, Governor Perry responded, acknowledging the “concerns

from a federal standpoint about the importance of international law” and stating his belief

that the “international obligation” to comply with Avena is properly a matter within the

The Commission has not yet issued its final report, and will not do so until the United States has had
an opportunity to respond to the Commission’s findings. See Rule 43.2, Rules of Procedure of the
Inter-American Commission on Human Rights, available at http://www.cidh.org/Basicos/English/
Basic18.Rules%20of%20Procedure%20of%20the%20Commission.htm. Until the United States takes
steps to implement the Commission’s recommendations, precautionary measures remain in effect.

province of the federal executive branch and Congress. 82a. Governor Perry further
stated that he was “advised” that the “State of Texas will ask the reviewing court [in
federal habeas proceedings] to address the claim on the merits.” Id.

On July 28, 2008, Mexico’s Secretary of Foreign Affairs, Patricia Espinosa
Cantellano, also sent a letter to Governor Perry and asked him to suspend Mr. Medellín’s
execution and to help ensure that Mr. Medellín is afforded the judicial hearing to which
he is entitled as a result of the Avena Judgment. 84a-85a.

I. The Proceedings Below
On July 28, 2008, after his federal habeas petition was dismissed, Mr. Medellín
filed a second subsequent application for a writ of habeas corpus in the Texas Court of
Criminal Appeals, and along with it, an application for a stay of execution. Mr. Medellín
argued that his constitutional rights to life and due process of the law entitle him to
reasonable access to a remedy of judicial process that the United States is bound as a
matter of international law to provide, and that therefore to execute Mr. Medellín before
the competent political actors have had a reasonable opportunity to convert the Nation’s
international law obligation under the Avena Judgment into a justiciable legal right would
amount to an unconstitutional deprivation of his right to life without due process of law.
In addition, Mr. Medellín argued that his execution without having received the required
review and reconsideration would impinge upon the constitutional authority of Congress,
confirmed by this Court, to give effect to the United States’s obligation under Article
94(1) of the United Nations Charter to comply with the Avena Judgment. In his stay

application, Mr. Medellín asked the Court to delay his execution to allow the competent
political authorities a reasonable opportunity to implement the Judgment.

Although the Texas Court of Criminal Appeals has not yet ruled on Mr.
Medellín’s applications, his scheduled execution in six short days from now compels him
to file in the event the CCA denies relief.

REASONS FOR GRANTING A WRIT OF HABEAS CORPUS

Mr. Medellín is scheduled to be executed by lethal injection on August 5, 2008,
although he has yet to receive the review and reconsideration of his conviction and
sentence mandated by the Avena Judgment of the International Court of Justice. In
Medellin v. Texas, 128 S. Ct. 1346 (2008), this Court confirmed that the United States is
bound as a matter of international law to comply with the Avena Judgment, and clarified
that it falls to Congress to determine whether and how to give the Judgment domestic
legal effect.

No one—not this Court, not the Executive, not Congress, not Texas—disputes the
United States’s “plainly compelling” interest in complying with the international
obligation reflected in Avena. In the four months since this Court’s decision in Medellín

v. Texas, federal and state actors have been engaged in unprecedented efforts to find an
alternative and expeditious means of implementing the United States’s obligations under
the Avena Judgment. The House of Representatives has introduced legislation, the
Secretary of State and Attorney General have called upon Texas to work with the federal
government to avoid a breach of its treaty commitments, a Texas senator has promised to
introduce legislation to implement Avena as soon as the Texas Legislature reconvenes,

15

and leaders of the diplomatic and business communities have warned that Mr. Medellín’s
execution could have grave consequences for Americans abroad.

Despite this extraordinary and unique set of circumstances, Texas has set Mr.
Medellín’s execution for the earliest possible date under Texas law, and proceeds
implacably towards execution on August 5. If allowed to proceed, Texas will
simultaneously deprive Mr. Medellín of reasonable access to a remedy required under a
binding international legal obligation and place the United States in irreparable breach of
its treaty obligations. Under these unique circumstances, Mr. Medellín’s execution
would violate his constitutionally protected right not to be deprived of his life without
due process of law. And by placing the United States in irreparable breach of its treaty
commitments before Congress and the federal Executive can act to compel compliance,
Texas effectively will usurp the institutional prerogative of the federal political
branches—advocated by Texas in Medellin v. Texas and confirmed by this Court—to
determine whether and how to give domestic legal effect to the treaty obligations of the
Nation. This Court must not allow Texas to subvert Mr. Medellín’s constitutional rights
and the compelling institutional interests of Congress and the Executive in a race to
execution, particularly given the overwhelming public interest in achieving compliance
with the Avena Judgment.

In view of the exceptional circumstances of this case, Mr. Medellín respectfully
seeks three alternative forms of relief from this Court: (1) a writ of certiorari in the event
that the Texas Court of Criminal Appeals dismisses his pending applications for habeas
relief and a stay of execution; or (2) a writ of habeas corpus; or (3) recall of this Court’s

mandate in Medellin v. Texas, 128 S. Ct. 1346 (2008), for the purpose of preserving
Congress’s ability to bring the nation into compliance with the Avena Judgment. Finally,
in connection with whichever form of relief the Court may deem appropriate to grant, Mr.
Medellín asks this Court to grant his motion for a stay of his execution for such time as is
necessary to permit the competent political actors a reasonable opportunity to act to
comply consistent with this Court’s decision in Medellin v. Texas.

I.
The Same Compelling Circumstances That Weigh In Favor of A Grant of A
Writ of Certiorari Weigh In Favor of a Grant of A Writ Under This Court’s
Original Habeas Powers.
The Court may act to prevent Mr. Medellín’s execution in violation of the Avena
Judgment by the grant of a writ of habeas corpus pursuant to 28 U.S.C. § 2241, which
empowers this Court to grant the Great Writ where a prisoner is “in custody in violation
of the Constitution or laws or treaties of the United States[.]” 28 U.S.C. § 2241(c)(3).
By exercising its discretion in the form of an extraordinary writ, this Court would
preserve its ability, in truly exceptional circumstances, to prevent the incalculable harm
that would ensue from a breach of the nation’s treaty commitments, to preserve the
undisputed right of Congress to take action, and to protect Mr. Medellín’s right not to be
deprived of his life without due process of law.

A.
If A Writ Of Certiorari Is Unavailable, This Court Should Grant A
Writ of Habeas Corpus.
Although the extraordinary writs are a rare form of relief, sparingly exercised in
the discretion of the Court, the circumstances of this case plainly are exceptional—indeed
unprecedented, unlikely to repeat themselves, and of the highest possible significance, in

terms both of the caliber of interests implicated and the detriment that will befall the
institutions of federal government, the American public, and Mr. Medellín himself if his
case is permitted to fall into a black hole in the constitutional design.

Indeed, the circumstances here are in some respects reminiscent of—yet easily
more extraordinary than—the cases where this Court has granted a writ of habeas corpus
in an original action. For example, in Ex parte Grossman, 267 U.S. 87 (1925), the
petitioner had been sentenced to a single year of imprisonment for the unlawful sale of
liquor. The President issued a pardon; the district court committed the petitioner to serve
the sentence notwithstanding the pardon; and this Court intervened to vindicate the
authority of the President to pardon criminal contempt. Id. at 107-08. There, the stakes
were plainly less dramatic where the sentence was minor and there was no claim that the
petitioner’s case had broader implications, yet the Court intervened to make effective the
President’s constitutional power to issue pardons. See U.S. Const. art. II, § 2. The
intervention of this Court here would not only protect Congress’s constitutional
prerogative to enact legislation to give effect to a non-self-executing treaty commitment
of the United States, but also the right of the petitioner not to be deprived of a remedy
that the competent political actors seek to provide him. See Part I above.

This Court’s jurisdiction under 28 U.S.C. § 2241 to entertain and grant original
writs of habeas corpus was not repealed by the amendments to 28 U.S.C. §§2244 and
2254 in the 1996 Antiterrorism and Effective Death Penalty Act (“AEDPA”). Felker v.
Turpin, 518 U.S. 651, 654 (1996) (“[AEDPA] does not preclude this Court from

entertaining an application for habeas corpus relief[.]”); see also id. at 658 (AEDPA
“does not deprive this Court of jurisdiction to entertain original habeas petitions.”).

B.
Adequate Relief Cannot Be Obtained In Any Other Form Or From
Any Other Court.
The Court has made it clear that its exercise of discretion to issue a writ of habeas
requires that the petitioner also “show that adequate relief cannot be obtained in any other
form or from any other court. These writs are rarely granted.” Id. at 665 (quoting Sup.
Ct. R. 20.4(a)). This case meets this demanding test.

As the United States has stated, Mr. Medellín has never received review and
reconsideration in conformity with the guidelines set forth in Avena. 98a, lines 8-11
(“[The previous holding] does not give full and independent weight to the treaty violation,
which is what Avena requires and which is what the President has directed.”); see also
Medellin v. Texas, 128 S. Ct. at 1389-90 (Breyer, J., dissenting) (“While Texas has
already considered [whether the police failure to inform Medellin of his Vienna
Convention rights prejudiced Medellin], it did not consider fully, for example, whether
appointed counsel’s coterminous 6-month suspension from the practice of the law
‘caused actual prejudice to the defendant’—prejudice that would not have existed had
Medellin known he could contact his consul and thereby find a different lawyer.”).
While the Governor of Texas has conveyed his understanding that the Texas Attorney
General’s office will now seek merits review of all Vienna Convention claims presented
in federal court by Mexican nationals subject to the Avena Judgment who have never
before received such review, he has not explicitly acknowledged that that process must

represent prospective, de novo review, on a full record presented at an evidentiary
hearing, and in light of the correct legal standard, all in accord with the ICJ’s rulings in
Avena. In any event, Mr. Medellín petitions this Court for a writ of habeas corpus
because he anticipates that the Court of Appeals will hold that he is effectively without
any federal forum in which he can benefit from Texas’s newly announced position.

Petitioner files this petition in anticipation of the prospect that he will be unable to
obtain relief from any other court.5 He has applied for relief from the Texas state courts,
and that application remains pending. See Second Subsequent Application for Post-
Conviction Writ of Habeas Corpus. Further, while Mr. Medellín has not yet filed in the
Court of Appeals because of the Texas two-forum rule,6 he anticipates that if it becomes
necessary to file in that Court, the Court will hold that he is unable to meet the successive
petition requirements of 28 U.S.C. § 2244(b). The District Court has already held that he
cannot meet those literal standards and therefore cannot obtain leave to file a § 2254
petition in the lower federal courts. Medellin v. Quarterman, No. H-06-3688, 2008 U.S.
Dist. LEXIS 55758, at *7 (S.D. Tex. July 22, 2008). Even if the Court of Appeals were
to accept his argument that his present claim arises from the Avena Judgment, a decision
that came down after he had already presented his Vienna Convention claim in his initial

5
Petitioner is also seeking to obtain relief from this Court in every “other form” that he believes to be
arguably available, including a petition for a writ of certiorari for review of the judgment of the Texas
Court of Criminal Appeals and a motion to recall and stay the Court’s mandate in Medellin v. Texas.

6
See Ex parte Soffar, 143 S.W.3d 804, 805-06 (Tex. Crim. App. 2004) (Texas state courts defer action
on causes properly within their jurisdiction “until the courts of another sovereignty with concurrent
powers, and already cognizant of litigation, have had an opportunity to pass upon the matter.”). Given
the imminent execution date, Mr. Medellin will lodge his papers in the Court of Appeals, for filing if
the Court of Criminal Appeals does not grant relief.

application, the Court of Appeals could hold that it is bound by the wording of the
successor provision’s requirements of “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2244(b)(2); Medellin v.
Dretke, 544 U.S. at 666 (2005) (“A certificate of appealability may be granted only
where there is ‘a substantial showing of the denial of a constitutional right.’ To obtain
the necessary certificate of appealability to proceed in the Court of Appeals, Medellin
must demonstrate that his allegation of a treaty violation could satisfy this standard.”)
(Court's emphasis)). This Court would not be so bound.7

The exceptional circumstances of this case satisfy the equitable principles
embodied in the statutory standards. Mr. Medellin has not abused the writ by holding
back his Vienna Convention claim, having raised the claim in his first state and federal
habeas petition. His claim has now been transformed by the Avena judgment, which,
although not announcing a rule of constitutional law, interprets a treaty made under the
authority of the United States which is also part of the Supreme Law of the Land under
Article VI, clause 2 of the Constitution. That decision was made retroactive—and,
indeed, directly applicable to petitioner’s own case—by a court possessing authority with

Just as the Court’s jurisdiction under 28 U.S.C. § 2241 was not repealed by AEDPA, the limitations on
second or successive petitions imposed by AEDPA similarly do not apply to original writ applications
made under § 2241. Rather, those limitations apply specifically and exclusively to “claim[s] presented
in a second or successive habeas corpus application under section 2254.” 28 U.S.C. §§ 2244(b)(1)-(2).
However, the Court has held that the statutory limitations reflect “‘a complex and evolving body of
equitable principles informed and controlled by historical usage, statutory developments, and judicial
decisions,’” and hence should “certainly inform our consideration of original habeas petitions.” Felker

v. Turpin, 518 U.S. at 663-64 (quoting McCleskey v. Zant, 499 U.S. 467, 489 (1991)). Although the
Court’s decisions under § 2241 are informed by those principles, its jurisdiction is not limited by them;
that jurisdiction extends to any case in which “a prisoner . . . is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See Felker v. Turpin,
518 U.S. at 659 n.2.

21

regard to the interpretation of this treaty. Even if in the process of becoming judicially
enforceable, that decision established new predicates for the claim that were not
previously available to petitioner, those predicates are, at a minimum, determinations by
a court whose judgments on the subject are entitled to “respectful consideration,” see
Medellin v. Texas, 128 S. Ct. at 1361 n.9 (quoting Breard v. Greene, 523 U.S. 371, 375
(1998); Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2683 (2006), especially when
rendered in a full and fair proceeding in which the United States fully participated.8

Further, the Inter-American Commission has now determined, after reviewing
evidence that would have to be considered in the course of the review and reconsideration
ordered by the ICJ but has never been considered on the merits in a U.S. court, that the
Vienna Convention violation caused Mr. Medellin prejudice, in large part by preventing
Mexico from arranging for his legal representation and ensuring he had an adequate
defense. See 65a, ¶ 128. The Commission recommended that the United States vacate
Mr. Medellín’s death sentence and provide him with a new trial. Pet. App. 65a, ¶ 128;
72a, ¶ 160. While Mr. Medellin should not have to show that he would prevail in the
course of review and reconsideration in order to vindicate his entitlement to receive it, the

In Garza v. Lappin, 253 F.3d 918 (7th Cir. 2001), the United States Court of Appeals for the Seventh
Circuit allowed a habeas petition raising a treaty claim to be brought under § 2241, although the
petitioner could not surmount the restrictions on successive § 2255 petitions. The court in Garza held
that because the petitioner’s treaty claim had not ripened until the announcement of the decision of the
international tribunal on which it was based, the § 2255 remedy was “inadequate or ineffective to test
the legality of [his] detention,” making his petition “properly cognizable under § 2241.” Id. at 921
(quoting 28 U.S.C. § 2255(e)). In Garza, the Court of Appeals also noted that, because the legal
predicate for the treaty claim did not exist at the time of petitioner’s earlier habeas filings, it was
arguable that the petition before it was not “second or successive” at all. Id. at 923-24 (citing Stewart

v. Martinez-Villareal, 523 U.S. 637, 642-45 (1998)).

22

Inter-American Commission’s determination adds weight to the factors counseling in
favor of granting the writ.

Thus, to the extent that this Court’s exercise of its equitable discretion under §
2244 is informed by the terms of § 2244, this case qualifies for its consideration. But
that is only one aspect of the exceptional circumstance this case presents. Far more
exceptional—indeed, unique in this Court’s history—are the circumstances set forth
above in support of the petition for a writ of certiorari: a court of competent jurisdiction,
vested by treaty made by the President and ratified by the Senate with the authority to
resolve disputes regarding the interpretation and application of that treaty, has found a
violation of petitioner’s rights and required a judicial remedy that appears to be available
in no other forum.

CONCLUSION

For the foregoing reasons, this Court should grant a writ of certiorari or, in the
alternative, grant a writ of habeas corpus, or, in the further alternative, pursuant to the
accompanying motion, recall and stay its mandate in Medellin v. Texas, 128 S. Ct. 1346
(2008). In addition the Court should stay the execution of José Ernesto Medellín to allow
the competent political actors a reasonable opportunity to implement the international law
obligations of the United States reflected in the Avena Judgment of the International
Court of Justice.

July 31, 2008

Respectfully submitted,

DONALD FRANCIS DONOVAN

(Counsel of Record)

CATHERINE M. AMIRFAR
JILL VAN BERG
WILLIAM C. WEEKS
DEBEVOISE & PLIMPTON LLP
919 Third Avenue
New York, NY 10022-3916

(212) 909-6000
SANDRA L. BABCOCK
Clinical Professor of Law
Northwestern University School of Law
357 E. Chicago Avenue
Chicago, Illinois 60611

(312) 503-0114
Attorneys for Petitioner

Time to end the death penalty's cycle of violence

Editorials & Opinions

Posted on Sun, Aug. 03, 2008

Time to end the death penalty's cycle of violence

By RONALD CARLSON

Special to the Star-Telegram

http://www.star-telegram.com/242/story/802181.html

Star-Telegram/Rodger Mallison

Texas’ death chamber is at the Walls Unit, in downtown Huntsville. The so-called Death House is at the far left of the building near the guard tower. Star-Telegram/Rodger Mallison

Visit our photo store

June 13, 1983, and Feb. 3, 1998, are two days that will forever be etched in my memory.

On that fateful day in June, I lost my dear sister, Deborah Thornton, senselessly murdered along with her friend Jerry Lynn Dean.

Fifteen years later, I witnessed another senseless act of violence: the execution of Karla Faye Tucker, the woman condemned for the crime.

Before I lost my sister, I had no opinion on the death penalty. But Deborah’s tragic death made the question of capital punishment a painfully personal one. When I learned of the murder of my only sibling, who had helped raise me after our mother died, I was filled with hatred. I would have killed those responsible with my own hands if given the opportunity.

But when I learned that those responsible — Karla Faye and her friend Daniel Garrett — were in fact facing death sentences, I was uncertain that justice was being served.

I’ve since had 25 years — almost half my life — to examine the subject, and the conclusion I’ve come to is a clear one: We as a society should not be involved in the practice of killing people.

Wanting to see those who killed your loved ones suffer the same fate is understandable — no one can sit in judgment of those who have faced such loss — but our justice system should not be dictated by vengeance. As a society, shouldn’t we be more civilized than the murderers we condemn?

Finding faith is what led me to this conviction and helped me confront my pain and anger.

Turning to God enabled me to realize that, while lashing out might satisfy our instinctual desire for revenge, we as a society must strive not to indulge those desires. Jesus preached the need to love one another and the sanctity of life — all life, no exceptions, no asterisks to the rule.

What could be a more egregious violation of his teachings than the state executing its own citizens in retribution?

The death penalty does nothing more than continue the cycle of violence that is corroding our society.

I have stood more than one time with Death Row families as they prepared to watch their loved ones head to the execution chamber. The pain that they feel is no different from the pain that I felt for my sister. When we engage in the practice of capital punishment, we force more people to suffer through the tragic loss I had to endure. We simply create more victims — victims of the very criminal justice system meant to protect us.

The broken nature of this system makes the practice of capital punishment all the more unconscionable. From inadequate counsel to the staggering number of wrongful convictions, it is morally deplorable to continue with the death penalty while these problems persist. Daniel died in prison before his execution could be carried out, but I was present at the execution of Karla Faye as a witness on her behalf. It was one of the most highly publicized executions in Texas history.

Karla Faye’s religious conversion while on Death Row had led many, including Pope John Paul II, to express support for clemency, but it was to no avail. Watching the execution left me with horror and emptiness, confirming what I had already come to realize: Capital punishment only continues the violence that has a powerful, corrosive effect on society.

While many advocated sparing Karla Faye’s life because of her redemption story, I consider myself an advocate for all life — and an opponent of all killing, whether it be the murder of innocent victims or the execution of the condemned.

As I watched Karla Faye die, all I could think was this: I can’t see Jesus pulling the switch.

Ronald Carlson lives in Houston and is an advocate against the death penalty.

Binding legal obligations under the Vienna Convention on Consular Affairs.

July 17, 2008

The Honorable Harry Reid

Majority Leader

U.S. Senate

528 Senate Hart

Washington, DC 20510

The Honorable Joseph Biden

Chairman, Committee on Foreign
Relations

U.S. Senate

438 Dirksen Senate Office Building

Washington, DC 20510

The Honorable Patrick Leahy

Chairman, Committee on Judiciary

U.S. Senate

224 Dirksen Senate Office Building

Washington, DC 20510

The Honorable Mitch McConnell

Minority Leader

U.S. Senate

361A Senate Russell

Washington, DC 20510

The Honorable Richard Lugar

Ranking Member, Committee on
Foreign Relations

U.S. Senate

450 Dirksen Senate Office Building

Washington, DC 20510

The Honorable Arlen Specter

Ranking Member, Committee on
Judiciary

U.S. Senate

152 Dirksen Senate Office Building

Washington, DC 20510

Dear Senators:

In light of the Supreme Court’s recent decision in Medellin v. Texas, we urge
congressional action to ensure that the United States lives up to its binding international
legal obligations under the Vienna Convention on Consular Affairs and the United
Nations Charter. As current and past Presidents of the American Society of International
Law, writing in our personal capacities, we are concerned about the possible U.S. breach
of these obligations and the impact such breach could have on our own nationals abroad
and on our reputation as a trusted counterparty in international legal relations.

In the Medellin case, the Supreme Court unanimously agreed with the Bush
administration that the United States is obliged to comply with the International Court of
Justice (ICJ) judgment in the Case Concerning Avena and Other Mexican Nationals
holding that the United States must provide “review and reconsideration” of the criminal
convictions of 51 Mexican nationals in the United States who were denied their Vienna
Convention rights of access to their own national consular officials when apprehended.

President Bush had issued a Memorandum to the Attorney General directing that
state courts give effect to the Avena judgment. The Supreme Court concluded, however,

that both it and the President were powerless to order such “review and reconsideration”
and that, absent voluntary action by state executives or legislatures, compliance with this
international obligation requires congressional action.

With the execution of the first of the Mexican nationals scheduled to take place in
Texas on August 5, 2008, the United States is poised irreparably to violate the Vienna
Convention and a judgment of the ICJ. Such violations of international law would set a
dangerous precedent, undermining the reciprocal Vienna Convention rights that
American citizens are entitled to enjoy while traveling, living, or working abroad.

Such violations would also damage the reputation of the United States as a nation
that respects its international legal obligations and holds others to the same high standard.
Our ability to conclude agreements binding on other countries facilitates nearly every
aspect of our international relations, including critically important issues relating to
cooperation in counter-terrorism efforts, trade, nuclear non-proliferation, environmental
protection, and international investment. Our interests in these areas dictate that we
adhere to our obligations, including those under the Vienna Convention and U.N.
Charter.

Both the President and the Supreme Court have concluded that the United States
is obliged to comply with the ICJ Avena judgment. The President has recognized the
importance of such compliance to U.S. international relations. Now it falls to Congress
to legislate compliance. If you fail to do so, Americans who are detained abroad may
well lose the critical protection of ensured access to United States consular officers. We
urge that you act, and act quickly.

We thank you for your attention to this important matter.

Sincerely,

Lucy Reed, ASIL President

520 Madison Avenue, 34th Floor

New York, NY 10022

and

ASIL Past Presidents:

José Alvarez

Charles N. Brower

James H. Carter

Thomas Franck

Louis Henkin
Arthur W. Rovine

Anne-Marie Slaughter
Peter D. Trooboff

Edith Brown Weiss

Mexican National Seeks Last-Minute Reprieve From Death Penalty

POSTED: 3:54 pm CDT August 1, 2008

UPDATED: 4:00 pm CDT August 1, 2008

WASHINGTON -- Four months after losing his case at the Supreme Court, a Mexican citizen facing execution next week in Texas asked the justices Friday for a last-minute reprieve. Jose Medellin, set to die Tuesday for his participation in the gang rape and beating deaths of two Houston girls, said that the high court should block his execution until Texas grants him a new hearing to comply with an international court ruling. The state has so far refused, and the court ruled in March that neither President Bush nor the international court can force Texas' hand. But Medellin says Congress or the Texas legislature should be given a chance to pass a law ordering a new hearing before he can be executed.

Four Democratic lawmakers have introduced such a bill in Congress, but it probably will not be acted upon this year. The Texas legislature does not meet again until January.

Medellin is one of roughly 50 Mexicans on death rows around the nation who were denied prompt access to their country's consular officials after being arrested in the United States. The access is guaranteed by international treaty.

In 2004, the World Court said the prisoners should have new court hearings to determine whether the absence of contact with consular officials affected the cases. Bush, while saying he disagreed with the ruling, nevertheless said the United States was obligated by treaty to comply with it and ordered the states to follow suit.

Texas refused, which is how Medellin's case ended up before the Supreme Court.

Bush was in the unusual position of siding with the death-row inmate against the state he served as governor, after having overseen 152 executions in Texas.

The high court ruled 6-3 that Texas had no obligation to reopen Medellin's case.

The World Court last month ordered U.S. authorities to do everything possible to halt executions scheduled in Texas of Medellin and four other Mexicans until their cases are reviewed.

The Bush administration has said it expected the World Court's order to have little impact.

On Thursday, the Texas Court of Criminal Appeals, the state's highest criminal court, rejected Medellin's latest appeal.

Phone Governor Perry to stay Medellin :

Phone Governor Perry to stay Medellin : GOVERNOR PERRY'S PHONE NUMBER: 1 512 463 2000 GOVERNOR PERRY'S FAX NUMBER: 1 512 463 1849

Move to head off Medellin execution

From Scotus BLOG :

Move to head off Medellin execution

Friday, August 1st, 2008 1:58 pm | Lyle Denniston

FURTHER UPDATE 4:50 p.m. The Texas Court of Criminal Appeals has now refused to issue a stay of the execution and has dismissed the latest state court challenge. Links to the Court’s order, along with separate opinions, can be found here. This appears to mean the execution of Jose Ernesto Medellin can occur Tuesday, unless there is action either by the Texas governor, who has a clemency plea before him, or by the Supreme Court. One judge on the Texas court, Judge Tom Price, urged the governor to grant a reprieve.

————————

Lawyers for a Mexican national on death row in Texas, who is at the center of a long-running international dispute over enforcing treaty rights, filed a flurry of legal pleas at the Supreme Court Friday morning, seeking to head off his execution next Tuesday. The papers in the case of Jose Ernesto Medellin — a case that has been before the Court twice previously — included a new appeal, a request for an extraordinary habeas writ, and a request to pull back a ruling earlier this year that rejected a prior appeal. Until action is taken on those challenges, his lawyers asked the Court to order a delay of Medellin’s execution for the gang rape and murder of two Houston teenagers 15 years ago.

The stay application (08A99) can be found here, the petition for certiorari (08-5573) is here, the petition for a writ of habeas corpus (08-5574) is here, and the motion (08A98) to recall and stay the Court’s mandate in Medellin v. Texas is here. The appendix to the two petitions (a large document) is here.

The World Court (formally, the International Court of Justice at The Hague, Netherlands) has twice ruled that the U.S. has a duty under the Vienna Convention on Consular Relations to provide a way for foreign nationals convicted of crimes in the U.S. and facing the death penalty to challenge the denial of their rights to consult with diplomats from their own country. In its most recent ruling, on July 16, the World Court told the U.S. government to act to stop the executions of Jose Medellin and four other Mexican nationals on death row in Texas (this ruling is discussed in this post).

In the Supreme Court’s most recent action March 25 on Medellin’s case (docket 06-984), it ruled by a 6-3 vote that, while the U.S. was bound by the Vienna Convention, Congress had not taken steps to provide for its actual enforcement in the U.S. It also ruled that President Bush did not have the authority on his own to order Texas or any other state to comply with the World Court ruling and give foreign nationals a new chance to challenge their conviction and sentences.

In asking the Court on Friday to pull back that decision, Medellin’s counsel said they were not seeking to reopen the issues resolved there, but rather wanted it kept on hold “to allow Congress a reasonable opportunity to implement legislation consistent with the Court’s decision in that case.”

The papers do not specify any specific time period to allow Congress slatuand the Texas legislature to take action, but they do note that Congress it not expected to act during this year on a proposed measure to enforce Vienna Convention rights, and the state legislature in Texas does not meet again until January. (In a clemency plea to Texas’ governor, Medellin’s lawyers have asked for a 240-day reprieve.)

“In the four months since this Court’s decision in Medellin v. Texas,” his lawyers said in one of the filings, “federal and state actors have been engaging in unprecedented efforts to find an alternative and expeditious means of implementing the United States’s obligations under” the World Court rulings. “The [U.S.] House of Representatives has introduced legislation, the Secretary of State and Attorney General have called upon Texas to work with the federal government to avoid a breach of its treaty commitments, a Texas senator has promised to introduce legislation to implement [the World Court decision] as soon as the Texas Legislature reconvenes, and leaders of the diplomatic and business communities have warned that Mr. Medellin’s execution could have grave consequences for Americans abroad.”

The Court, the attorneys added, “must not allow Texas to subvert Mr. Medellin’s constitutional rights and the compelling institutional interests of Congress and the Executive in a race to execution.”

If the execution goes forward now, the attorneys asserted, “Texas will effectively usurp the institutional prerogative of the federal political branches — advocated by Texas in Medellin v. Texas and confirmed by this Court — to determine whether and how to give domestic legal effect to the treaty obligations of the Nation.”

Since the Supreme Court’s decision in March, there have been these developments, according to the two petitions on Friday:

** A state judge on May 5 ordered a new execution date set for Medellin; the actual date is next Tuesday.

** On June 5, Mexico returned to the World Court, claiming that all parts of U.S. government — national and state — have been involved in violations of the Vienna Convention, so all must take steps to prevent the imminent executions of Medellin and four others in Texas. That led to the World Court’s July 16 order that the executions of those five be put off while that tribunal considers Mexico’s new claim.

** On June 17, U.S. Attorney General Michael B. Mukasey and Secretary of State Condoleeza Rice wrote to the governor of Texas, Rick Perry, asking for help to carry out the World Court ruling in Texas. Gov. Perry replied that it was up to the federal government to comply with international obligations.

** On July 14, leading Democrats in the U.S. House of Representatives introduced a new bill to create rights for Medellin and others covered by the World Court’s rulings.

** On July 24, the Inter-American Commission on Human Rights, a part of the Organization of American States, issued a preliminary report finding that Medellin’s rights were violated by denial of access to Mexican diplomats while his case went forward to Texas courts.

** On July 22, a federal judge turned down a reopened habeas challenge by Medellin, based on his Vienna Convention rights, finding that he had no legal right to pursue that new claim without first getting permission from the Fifth Circuit Court.

** On July 28, after the federal habeas plea was dismissed, Medellin’s lawyers filed a new challenge in the Texas Court of Criminal Appeals. According to Friday’s filing in the Supreme Court, that state court had not yet ruled, leading his attorneys to go ahead with their petition to the Supreme Court because the execution was imminent and they sought relief in the event the state court turned them down prior to Tuesday. (UPDATE 4:50 p.m. Friday: The Court of Criminal Appeals, in an opinion dated Thursday, dismissed this latest challenge and refused to stay the scheduled execution on Tuesday.)

Medellin v. Texas - SCOTUS WIKI

Read the case here :

http://www.scotuswiki.com/index.php?title=Medellin_v._Texas

Despite calls for delay, Mexican citizen set for execution

http://www.chron.com/disp/story.mpl/headline/metro/5919299.html

Despite calls for delay, Mexican citizen set for execution

By ALLAN TURNER

Copyright 2008 Houston Chronicle

The Texas Court of Criminal Appeals has dealt capital killer Jose Medellin a major setback in his bid to escape the executioner's needle, throwing out his bid for a post-conviction writ of habeas corpus and his motion for a stay.

Medellin, 33, convicted in the 1993 rape-murder of Jennifer Ertman, 14, and Elizabeth Pena, 16, still has motions for stays pending with the U.S. Supreme Court and the Texas Board of Pardons and Paroles.

He is scheduled to be put to death Tuesday.

Medellin's attorneys could not be reached for comment Friday.

Medellin, a Mexican national, had filed his appeal based on arguments that Houston police deprived him of his right to contact the Mexican consulate after his arrest. The right is guaranteed by the United Nation's Vienna Convention of Consular Relations, to which the United States is a party.

Last month, the UN's world court ordered Medellin be granted a stay so that a hearing could be held on whether that violation damaged his defense.

Texas authorities responded that Medellin was not informed of his UN rights because he did not identify himself as a Mexican citizen. Thus far, they have resisted pressure from President Bush and other U.S. officials to comply with the world court order.

The Texas appeals court, in a ruling posted today, held that the latest petition, supposedly containing late-developing arguments and facts that could not have been presented earlier, was not filed in a timely manner.

Medellin was one of six gang members arrested in the dual killings in TC Jester Park. Gang member Derrick O'Brien was executed in July 2006. Peter Cantu also has been condemned. Two other gang members, minors at the time of the crime, have had their death sentences commuted to life. Medellin's brother, only 14 at the time of the killings, is serving a 40-year sentence.

Judge Cathy Cochran, in concurring with the appeals court's majority opinion, wrote that there is "no likelihood at all" that the inadvertent violation of the Vienna Convention harmed Medellin's defense.

"This was a truly despicable crime committed by ... deadly brutal young men who were deadly dangerous to anyone who might find themselves near them. All five were sentenced to death by separate juries after hearing all of the evidence in each of their individual trials.

"No matter how long the courts of this state, this nation, or any other nation review, re-review and re-review once again the disgusting facts of this crime and these perpetrators, the result should be the same: These juries reached a reasonable verdict, beyond a reasonable doubt, that a sentence of death was the only appropriate punishment under Texas law."

allan.turner@chron.com

AMERICANS ABROAD ENDANGERED?

Texas set to defy World Court with execution

03 Aug 2008 12:20:48 GMT

Source: Reuters

By Ed Stoddard

AMERICANS ABROAD ENDANGERED?

Support for the death penalty may be strong in Texas but opinion on the issue is by no means uniform. In a recent editorial, The Dallas Morning News urged the governor to halt Medellin's execution.

DALLAS, Aug 3 (Reuters) -

Texas is set to defy the World Court and anger Mexico on Tuesday by executing a Mexican national who was not informed of his right to consular services after his arrest. Texas, by far America's most active death penalty state, condemned Jose Medellin for the 1993 rape and murder of 16-year-old Elizabeth Pena in Houston. Another girl was killed in the vicious gang-related assault but Medellin was convicted only of Pena's murder. The World Court last month ordered the U.S. government to "take all measures necessary" to halt the upcoming execution of five Mexicans until it makes a final judgment in a dispute over suspects' rights. Medellin is the first of those scheduled to be put to death and the only one so far with a 2008 execution date, according to the Death Penalty Information Center. Alison Castle, a spokeswoman for Republican Gov. Rick Perry, said the state's Board of Pardons and Paroles was considering the case and the governor would most likely make his decision based on its recommendation on Tuesday. She emphasized the brutal nature of the crime. "It's very important for the citizens of Texas to remember that Jose Medellin ... brutally and viciously gang raped, stomped, kicked, slashed, strangled and murdered two teenage girls in Houston," Castle said. "The World Court has no jurisdiction here in Texas. We're concerned about following Texas law and that's what we're doing." The row, which has strained relations between the United States and Mexico, centers on the fact that the United States failed to inform 51 Mexican citizens sentenced to die in U.S. jails of their right to consular assistance. "The impact of ignoring this endangers Americans traveling abroad," said Victoria Palacios, a professor at Southern Methodist University's Dedman School of Law in Dallas. "If the world sees us ignoring the rights of foreign nationals arrested here, there is very little reason for them to recognize the rights of U.S. citizens." She said the case also underscores the gulf between U.S. views of the death penalty and those elsewhere. Capital punishment has wide political support in America, especially in Texas, which has executed more than 400 prisoners since the Supreme Court lifted a ban on the practice in 1976. Political fall-out from the Medellin and related cases has reached the White House and the U.S. Supreme Court. President George W. Bush directed Texas to comply with a World Court ruling in 2004 mandating review of the cases of Medellin and other Mexicans in U.S. prisons awaiting execution. The U.S. Supreme Court said in March Bush's action had exceeded his authority. "Mr. Perry can flex the state's judicial muscle and show the world that Texans don't bow to the whims of some distant, obscure international court," it said. "But it would send an unequivocal message to all foreign governments -- especially Mexico -- that this country doesn't stand by its promises." The June 1993 crime for which Medellin was condemned was chilling. According to the Texas Attorney General's office, Pena and her 14-year-old companion, Jennifer Ertman, were walking home when they encountered a gang initiation. Medellin and his fellow gang members sexually assaulted, beat and strangled the two girls. When their badly decomposed bodies were finally recovered, they could only be identified by dental records. (Additional reporting by Jim Forsyth in San Antonio; Editing by Todd Eastham)

Published: Sunday, August 3, 2008 at 3:30 a.m.
Last Modified: Saturday, August 2, 2008 at 9:40 p.m.

Alabama Attorney General Troy King calls Bobby Gilbert, whose 11th-hour murder confession apparently led the state Supreme Court to delay the execution of Thomas Arthur, 'an incredible person' — meaning that Gilbert lacks credibility.

That may be. At the same time, however, it's incredible that the state has lost a key piece of evidence in the murder case — one that could show whether Gilbert lied or told the truth when he confessed.

On Wednesday, the Supreme Court voted 5-4 to stay Arthur's execution, which had been scheduled for Thursday. Arthur was convicted in the murder-for-hire slaying of Troy Wicker Jr. in Muscle Shoals in 1982.

Wicker's wife, Judy, initially told law enforcement authorities that a black man raped her and killed her husband. Later, in a deal with prosecutors to get out of prison, she changed her story, saying the murderer was Arthur.

The prosecution offered no physical evidence linking Arthur to the crime; he was convicted largely on the strength of Judy Wicker's testimony. But last week, Gilbert, an inmate at the St. Clair Correctional Facility, confessed to the murder.

DNA testing could readily show whether Gilbert is telling the truth. However, Clay Crenshaw, head of the attorney general's capital litigation section, said Mrs. Wicker's rape kit has been lost.

He said he has asked the Muscle Shoals Police Department, the Colbert County District Attorney's Office and the Alabama Department of Forensic Sciences for the kit but none of them knew where it was.

Further clouding the picture, it's not even certain who had responsibility for this key piece of evidence. Assistant Attorney General Jasper Roberts Jr. said he's unsure what the evidence preservation procedure was at the time of the crime.

The lapse is stunning. Alabama has never provided adequate funding for criminal investigation — the Department of Forensic Sciences has been particularly shortchanged — yet we have one of the highest-paid attorneys general in the country. Arthur's attorney, Suhana Han, wants to know why King's office is only now inquiring about the rape kit when defense lawyers have been litigating for it since 2002.

It's a good question.

Arthur may be guilty of Wicker's slaying. However, the state needs to make sure the evidence against him is solid before it puts him to death. That's one of the reasons why the rape kit loss is unpardonable.

There is a cautionary tale for Alabama in the O.J. Simpson murder trial.

Prosecutors presented a mountain of evidence implicating Simpson in the brutal murders of his wife, Nicole, and her friend, Ron Brown, in Los Angeles in 1994. However, sloppy or casual handling of evidence — some of which was lost — was a major factor in Simpson's acquittal.

Attention to proper evidence handling is as crucial in Alabama as it is in California.

Saturday, 2 August 2008

Help Dennis Skillicorn

help Dennis Skillicorn

Target:

date set aug 27 200/

Friday, 1 August 2008

The filing to Alabama Supreme Court, which gave the stay for Thomas Arthur

The filing to Alabama Supreme Court

Click on the image to read

Click on the image to read

Even Thomas Arthur deserves justice

http://www.al.com/opinion/huntsvilletimes/dperson.ssf?/base/opinion/121758214544970.xml&coll=1

Opinion Columnist David Person

Even Thomas Arthur deserves justice

Friday, August 01, 2008 Huntsville Times

Imagine the joy in my little anti-death penalty heart when I learned that the Alabama Supreme Court granted Thomas Arthur his third stay of execution on Wednesday.

Joy, not for Arthur, but for justice. Though I confess I was surprised. The court is no bastion of bleeding-heart liberalism.

Eight of the nine justices are Republicans, self-proclaimed, diehard conservatives, who I suspect probably are quite comfortable with the death penalty.

This won't sit well with many conservative voters. But GOPers should breathe easy. Alabama's death penalty will still be in place regardless of what happens to Arthur, much to my regret.

The court hasn't swung wildly to the left. The stay wasn't the opening salvo in a judicial assault on the death penalty in Alabama. It's about something more fundamental and basic than that: ensuring that the state doesn't put innocent people to death.

Some will bristle at the idea that Arthur could be innocent of anything. People who have known him for years described him as troubled and violent in one 2007 article published by the TimesDaily. Another TimesDaily story described him as "one of the most notorious criminals in the history of the Shoals." It's also true that Arthur had been convicted of murder and was on work release when he was charged with killing Troy Wicker in 1982.

His daughter, Sherrie Arthur, while questioning her father's guilt in the Wicker murder, told the TimesDaily that he "was not the greatest father in the world."

Still, previous crimes and bad parenting aren't what's at issue. Arthur's character, or lack thereof, isn't the point, at least this time.

The question is whether Arthur killed Wicker. The point is to make sure that if the state is going to execute Arthur for a crime that he, in fact, did commit the crime.

Caught in the middle is Troy Wicker's family. They lost a loved one in the most unjust, horrible way. I can't imagine the pain they live with, the sorrow and anger they must feel.

Yet, the state can't afford to ignore that the Wicker murder is a murky affair. Judy Wicker, his widow, originally claimed that a black man had broken into their home, raped her and killed her husband. Later, she confessed to paying Arthur $10,000 to kill him.

And authorities found undeniable links to Arthur and Judy Wicker, who claimed she and Arthur had been having an affair. Circumstantial evidence certainly seemed to link Arthur to the crime.

Now, years later, convicted murderer Bobby Ray Gilbert has signed an affidavit confessing to the Wicker murder. Judy Wicker says that Gilbert, who is locked up at the St. Clair Correctional Facility with a life sentence, is lying.

Also revealed this week: The state has lost the rape kit that was performed on Judy Wicker at the time of the crime. So Arthur will now apparently be deprived of at least some DNA testing, which he has long maintained would prove his innocence.

These two late developments may not ultimately prove Arthur's innocence, but they certainly cast a huge shadow on the certainty of Arthur's guilt. The Alabama Supreme Court had no choice but to grant him another stay.

It doesn't serve any citizen if justice becomes a precarious, arbitrary proposition in Alabama. It always must be clear and certain, especially when the death penalty is involved.

Thomas Arthur has done some terrible, horrible things in his life. He has hurt people close to him, flouted the justice system and even pleaded guilty to murder once before.

He's no model citizen, no champion of virtue.

But none of that means he killed Troy Wicker. And before the state of Alabama puts him to death - if it puts him to death - it needs to be sure that he is guilty.

David Person's e-mail: david.person@htimes.com; voice mail: 532-4362

Update: Media coverage of stay in Alabama case

Innocence Blog

Update: Media coverage of stay in Alabama case

http://www.innocenceproject.org/Content/1499.php

Posted: July 31, 2008 10:15 am

Yesterday, Tommy Arthur’s execution (previously set for today) was stayed by the Alabama Supreme Court. Read media coverage of the developments below.

Your voice can help obtain justice for Arthur. Join thousands of Innocence Project supporters in sending an email urging Gov. Bob Riley to grant DNA testing now that the execution is stayed.

Media coverage:

New York Times: Court votes to Postpone an Execution in Alabama

Birmingham News: Court delays execution, state can’t find rape kit evidence

Birmingham News Editorial: Court had ample reasons to block today’s execution

Associated Press: Supreme Court postpones execution

Big news from Alabama

Dear

Thank you for writing to Alabama Gov. Bob Riley expressing your views about

the case of Tommy Arthur. Your voice makes a difference and we’re writing

today to share some important news in the case.

On Wednesday, the Alabama Supreme Court blocked Arthur’s execution,

which had been scheduled for Thursday, until the court can consider critical

new evidence in the case. Just this week, another Alabama inmate came

forward and admitted that he alone committed the murder for which Arthur

sits today on death row. DNA testing could prove whether the inmate is

telling the truth, and the Innocence Project — with your help —

has urged Gov. Riley to order DNA testing in the case before Alabama

carries out a sentence it can never reverse.

Now that the execution has been stayed, there is ample time to conduct testing.

We are renewing our call that the governor order testing today.

Please forward this email to your friends and collegues to urge Riley to order

DNA testing in this case.

Thank you for your support,

The Innocence Project

The Innocence Project — Benjamin N. Cardozo School of Law
100 Fifth Ave. 3rd Floor - New York, NY 10011
www.innocenceproject.org

Sunday, 3 August 2008

Editorials & Opinions

Posted on Sun, Aug. 03, 2008

Time to end the death penalty's cycle of violence

By RONALD CARLSON Special to the Star-Telegram

Mexican National Seeks Last-Minute Reprieve From Death Penalty

Despite calls for delay, Mexican citizen set for execution

By ALLAN TURNER

Copyright 2008 Houston Chronicle

Alabama must improve handling of key evidence

Saturday, 2 August 2008

help Dennis Skillicorn

Friday, 1 August 2008

Even Thomas Arthur deserves justice

Innocence Blog

Update: Media coverage of stay in Alabama case

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