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Click here for the full text of this decision FACTS:Jose Ernesto Medellin, a Mexican national, was convicted of capital murder and sentenced to death for his participation in the gang rape and murder of two teenage girls in Houston. The Court of Criminal Appeals (CCA) affirmed his conviction and sentence on direct appeal. Medellin filed an initial application for a writ of habeas corpus, claiming for the first time, among other things, that the state violated his rights under Article 36 of the Vienna Convention, because the state did not advise him of his right to contact the Mexican consulate after his arrest. The state trial court found that Medellin failed to object to the violation of his Vienna Convention rights at trial and, as a result, concluded that his claim was procedurally barred from review. The court also found in the alternative that Medellin, as a private individual, did not have standing to bring a claim under the Vienna Convention, because it is a treaty among nations and therefore does not confer enforceable rights on individuals; only signatory nations have standing to raise a claim under the treaty. Offering an additional alternative, the court determined that Medellin failed to show harm, because he received effective legal representation and his constitutional rights had been safeguarded. Finally, the court concluded that Medellin did not prove that his rights under the Fifth, Sixth and 14th Amendments had been violated and that he failed to show that lack of notification affected the validity of his conviction and sentence. The CCA adopted the trial court’s findings of fact and conclusions of law with a written order and denied relief. Medellin then presented his Vienna Convention claim in a federal petition for a writ of habeas corpus. The district court denied relief, and Medellin filed for a certificate of appealability. While his application was pending, the International Court of Justice (ICJ) issued its decision in Case Concerning Avena and other Mexican Nationals, 2004 I.C.J. No. 128. In that case, Mexico claimed that the United States had violated the Vienna Convention by failing to timely advise more than 50 Mexican nationals awaiting execution in U.S. prisons, including Medellin, of their right to talk to a consular official after they had been detained. The ICJ ruled in favor of Mexico, holding that the Vienna Convention does confer individual rights and that the United States violated the convention. To remedy the violation, the ICJ ordered the United States to provide review and reconsideration of the convictions and sentences at issue to determine whether the violation caused actual prejudice to the defendant in the process of administration of criminal justice. The ICJ specifically stated that review is required regardless of procedural default rules that would otherwise bar review. The federal district court denied Medellin’s application for a certificate of appealability, and Medellin appealed to the 5th U.S. Circuit Court of Appeals, which also denied his application. The 5th Circuit noted the ICJ decision in Avena, but determined that it was bound by the Supreme Court’s decision in Breard v. Greene, which held that claims based on a violation of the Vienna Convention are subject to procedural default rules. The 5th Circuit also found that even if Medellin’s Vienna Convention claim was not procedurally defaulted, its previous holding in Breard that the Vienna Convention does not create individually enforceable rights would require it to deny Medellin’s application for a certificate of appealability. Medellin petitioned for certiorari to the U.S. Supreme Court, which granted review. Before oral argument, President George W. Bush issued a memorandum directing state courts to give effect to the Avena decision under the principles of comity. While his case was pending before the Supreme Court, Medellin filed an application for a writ of habeas corpus in the CCA, requesting that the CCA give full effect to the Avena decision and to the president’s memorandum. The Supreme Court subsequently dismissed Medellin’s case as improvidently granted, stating that there was a possibility that Texas courts would provide Medellin with the review he sought pursuant to the Avena judgment and the president’s memo. The CCA ordered Medellin and the state to brief the following issue: whether Medellin meets the requirements for consideration of a subsequent application for writ of habeas corpus under the provisions of Art. 11.071, �5, of the Texas Code of Criminal Procedure (�5). HOLDING:Habeas relief was denied. The CCA first held that Avena is not binding federal law and therefore does not pre-empt �5. The U.S. Supreme Court, the CCA noted, has concluded that ICJ decisions are entitled only to respectful consideration. The Supreme Court is the absolute authority in defining a treaty’s meaning as federal law, the CCA stated. The CCA stated it was bound by the U.S. Supreme Court’s determination that ICJ decisions are not binding on United States courts. As a result, the CCA stated that Avena does not require it to set aside �5 and reconsider Medellin’s Vienna Convention claim. The CCA then moved on to the issue of presidential powers (however, this section of the majority opinion, labeled III.B., was only supported by a plurality of the CCA’s justices). Both Medellin and the United States as amicus curiae, the CCA stated, claimed that the president’s Feb. 28, 2005, memorandum pre-empted �5 and, as a result, required the CCA to reconsider Medellin’s conviction and sentence as prescribed by Avena. A plurality of the CCA, arguably joined by Presiding Justice Sharon Keller’s concurrence, held that the president’s memo exceeded his constitutional authority by intruding into the independent powers of the judiciary. The U.S. Supreme Court, the CCA stated, has made clear that its judicial power includes the authority to determine the meaning of a treaty as a matter of federal law. The clear import of this, the CCA stated, is that the president cannot dictate to the judiciary what law to apply or how to interpret the applicable law. The CCA expressed no opinion about whether an executive agreement between the United States and Mexico providing for state court compliance with Avena would pre-empt state law. Finally, a majority of the court rejected the claim that the Avena decision or the presidential memorandum qualified as a new factual or legal basis under Art. 11.071, �5(a)(1) of the Texas Code of Criminal Procedure so as to permit the CCA to reconsider Medellin’s Vienna Convention claim. OPINION: Keasler, J., delivered the opinion of the court with respect to Parts I, II, III.A., III.C., and IV, in which Keller, P.J., Meyers, Price, Johnson, Hervey, Holcomb and Cochran, J.J., joined, and an opinion with respect to Part III.B., in which Meyers, Price, and Hervey, J.J., joined. CONCURRENCES:Keller, P.J. “I conclude that the President of the United States does not have the power to order a state court to conduct such a review [of whether applicant was prejudiced by a failure to comply with the Vienna Convention on Consular Relations]. . . . A key issue, however, is the question of whether Article 36 of the Vienna Convention . . . confers individual rights upon detained foreign nationals. I believe it does. . . . “Article 36 of the Vienna Convention provides foreign nationals the option to invoke their right of access and communication with the consular officer. . . . I find it all the more imperative for a foreign national in the custody of law enforcement in this State to be informed of his treaty rights. . . . Not only is it imperative as a practical matter, Article 36 compels it.” Price, J., filed a concurring opinion. “I write separately to advise law enforcement of this State to honor the provisions of Article 36 of the Vienna Convention and apprise foreign nationals of their rights under the treaty.” Hervey, J., filed a concurring opinion. “[A]pplicant is by no means a stranger in a strange land. He has lived in this country and enjoyed its benefits since he was three-years old. From the record, it appears that he is fluent in English. Other than his surname, there is nothing to suggest that he is anything other than native-born. Indeed, he did not bother telling the police of his non-citizenship.” Cochran, J., filed a concurring opinion in which Johnson and Holcomb, J.J., joined. “I join all of the Court’s opinion except for Section IIIB dealing with the Presidential Memorandum. I am unable to conclude that a memorandum from the President to his Attorney General constitutes the enactment of federal law that is binding on all state courts. . . . Thus, I find it unnecessary to undertake a separation of powers analysis as does the majority.” Womack, J., concurred in the result without an opinion.

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