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Click here for the full text of this decision FACTS:This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 5. On Sept. 16, 1994, a jury convicted applicant of the offense of capital murder. He was sentenced to death on Oct. 11, 1994. This court affirmed applicant’s conviction and sentence on direct appeal. The applicant timely filed an application for writ of habeas corpus in the convicting court and, for the first time, raised a claim alleging the violation of his rights under Article 36 of the Vienna Convention. The convicting court recommended that this court deny this claim. The applicant then filed a writ application in the federal district court, making the same claim. The federal district court, like this court, denied relief on applicant’s Vienna Convention claim, and it also denied a certificate of appealability. The applicant then filed for a certificate of appealability in the 5th U.S. Circuit Court of Appeals. While that matter was pending, the International Court of Justice (ICJ) issued a decision in Case Concerning Avena and Other Mexican Nationals (Avena), 2004 I.C.J. No. 128 (March 31, 2004). The ICJ held that 1. the Vienna Convention guaranteed individually enforceable rights; 2. the United States must “provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the [specified] Mexican nationals”; and 3. the United States must determine whether the violations “caused actual prejudice” to those defendants, without allowing American procedural default rules or laws to bar such review. The 5th U.S. Circuit Court of Appeals, although acknowledging the Avena decision, denied applicant’s request for a certificate of appealability. First, it relied upon the U.S. Supreme Court’s decision in Breard v. Greene, 523 U.S. 371 (1998) (per curiam) in applying state and federal procedural default rules as a bar. Second, it relied upon its own prior holdings, such as United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir. 2001), to conclude that the Vienna Convention did not create an individually enforceable right. The U.S. Supreme Court granted certiorari in applicant’s case to consider two questions: first, whether a federal court is bound by the International Court of Justice’s (ICJ) ruling that United States courts must reconsider petitioner Jose Medellin’s claim for relief under the Vienna Convention on Consular Relations without regard to procedural default doctrines; and second, whether a federal court should give effect, as a matter of judicial comity and uniform treaty interpretation, to the ICJ’s judgment. After full briefing and oral argument, the Supreme Court dismissed the writ as improvidently granted. The Supreme Court explained that more than two months after granting certiorari and one month before oral argument, “President Bush issued a memorandum that stated that the United States would discharge its obligations under the Avena judgment by having State courts give effect to the [ICJ] decision in accordance with general principles of comity.” Further, just four days before oral argument, applicant filed a subsequent writ application in state court and requested that the Supreme Court stay its proceeding pending our consideration of the same issues that applicant raised in the Supreme Court. In dismissing applicant’s case, the Supreme Court set out “several threshold issues that could independently preclude federal habeas relief for Medellin, and thus render advisory or academic our consideration of the questions presented.” HOLDING:The court orders applicant to brief the issue of whether he meets the requirements for consideration of a subsequent application for writ of habeas corpus under the provisions of Article 11.071, 5, of the Texas Code of Criminal Procedure. The Attorney General of the United States is invited to present the views of the United States. OPINION:Per curiam.

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