¶ 1 Gerardo Valdez, Petitioner, was convicted of First Degree Malice Aforethought Murder and sentenced to death in Grady County District Court, Case No. CRF 89-139. Valdez appealed his Judgment and Sentence to this Court and we affirmed. Valdez appealed to the United States Supreme Court and his Petition for a Writ of Certiorari was denied. Valdez filed his original Application for Post-Conviction Relief in this Court, in accordance with 22 O.S.Supp. 1995 § 1089[ 22-1089](D)(1), and that Application was denied. Petitioner filed a Petition for a Writ of Habeas Corpus in the Western District of Oklahoma and the Petition was denied. His appeal to this Court was denied; thereafter, his Petition for a Writ of Certiorari to the United States Supreme Court was denied.

¶ 2 In April of 2001, the State of Oklahoma filed its application for order setting execution date, and this Court scheduled Petitioner's execution for June 19, 2001. See Order Setting Execution Date, D 1990-461 (April 23, 2001) (not for publication). Petitioner requested a clemency hearing and the Oklahoma Pardon and Parole Board voted three to one to recommend clemency to the Governor. On June 18, 2001, Frank Keating, Governor of Oklahoma, granted a thirty (30) day stay of execution to evaluate the recommendation to grant clemency. He denied the recommendation for clemency on July 20, 2001. Thereafter, upon request of the State of Oklahoma, this Court scheduled Petitioner's execution for August 30, 2001. See Order Setting Execution Date, D 1990-461 (August 1, 2001) (not for publication). Governor Keating issued a second thirty (30) day stay of execution on August 17, 2001.

¶ 3 On August 22, 2001, Petitioner, through counsel, filed a Second Application for Post-Conviction Relief. Also filed that day was a Motion for Evidentiary Hearing and Discovery, an Application for Special Admission of Non-Resident Attorneys, and a Motion for Leave to File Amicus Curiae Brief from the Government of Mexico. We directed the State of Oklahoma to file a Response to Petitioner's Second Application for Post-Conviction Relief, granted the Motion of the Mexican Government to file an Amicus brief, granted the Applications for Special Admission of Non-Resident Attorneys, stayed the order for execution indefinitely pending the outcome of these proceedings, and established a briefing schedule. See Order Directing Response, PCD 2001-1011 (September 10, 2001) (not for publication).

¶ 4 Attorneys Margaret Pfeifer, LeeAnn Anderson-McCall, Sandra Babcock, and Robert Nance entered their appearances in the case. In accordance with the schedule set forth in our September 10 th, 2001 Order, the State of Oklahoma filed its Response and its two volume Appendix on November 9, 2001. The Brief Amicus Curiae of the United Mexican States was filed on November 9, 2001. On November 20, 2001, Petitioner, through counsel, filed a Motion for Leave to File Reply Memorandum, with the Reply Memorandum attached; on November 27, 2001, Petitioner moved to substitute the proposed Reply Brief. Having considered that request, we find Petitioner's Motion for Leave to file the substituted Reply Memorandum should be and hereby is GRANTED.

¶ 5 The rules regarding the filing and review of subsequent applications for post-conviction relief in capital cases are set forth in Rule 9.7(G), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001) and 22 O.S. 2001 § 1089[ 22-1089](D)(8) and (9). Rule 9.7(G) provides:

(1) A subsequent application for post-conviction relief shall not be considered, unless it contains claims which have not been and could not have been previously presented in the original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22;

(2) An original application for post-conviction relief not filed in a timely manner shall not be considered, unless it contains claims which have not been and could not have been previously presented in a timely original application because the factual or legal basis was unavailable, as defined in Section 1089(D)(9) of Title 22.

(3) No subsequent application for post-conviction relief shall be considered by this Court unless it is filed within sixty (60) days from the date the previously unavailable legal or factual basis serving as the basis for a new issue is announced or discovered.

Title 22, Section 1089(D)(8) provides that if a subsequent application for post-conviction relief is filed, we may not consider its merits or grant relief unless the application "contains specific facts establishing that the current claims and issues have not been and could not have been presented previously" because the factual or legal basis was unavailable. 22 O.S.Supp. 1995 § 1089[ 22-1089](D)(1); see also Sellers v. State, 1999 OK CR 6, ¶ 2, 973 P.2d 894, 895. We now consider Petitioner's propositions in light of these restrictions.

¶ 6 Certain factual claims are not disputed in this proceeding. The parties agree that the State of Oklahoma did not comply with the requirements of Article 36 of the Vienna Convention on Consular Relations, which requires local authorities to notify a detained foreign national, without delay, of his right to communicate with his consulate. Upon the detainee's request, Article 36 requires the authorities to notify consular officials of the person's incarceration without delay. Vienna Convention, art. 36, 21 U.S.T. at 100-101. Because authorities in the State of Oklahoma did not comply with Article 36, the Mexican consulate was not notified of Valdez's arrest for First Degree Murder. The Government of Mexico did not learn of Valdez's arrest, conviction and sentence until April of 2001, when one of Valdez's relatives contacted the Mexican consulate in El Paso, Texas and informed consular officials of Valdez's upcoming execution in Oklahoma.

¶ 7 Once informed, consular officials assisted Valdez at his clemency hearing before the Oklahoma Board of Pardons and Paroles. The Government of Mexico retained experts and experienced attorney(s) to assist Valdez. Through investigation of his background and medical history, it was learned Valdez suffers from severe organic brain damage ; was born into extreme poverty; received limited education, and grew up in a family plagued by alcohol abuse and instability. Most significant of these findings, according to counsel for Valdez, is that he experienced head injuries in his youth which greatly contributed to and altered his behavior.

¶ 8 According to the experts who evaluated Valdez's Quantitative Electroencephalogram (QEEG), damage to the frontal lobe of the brain — as indicated in Valdez' QEEG — disrupts the frontal lobes' ability to regulate the temporal lobes. "This malfunction creates thought disturbances, impairs judgment, and compromises impulse control. . . . Use of alcohol would exacerbate these problems." Another syndrome associated with the type of brain damage Petitioner has is the distortion of religious beliefs.

¶ 9 This information was presented to the Oklahoma Pardon and Parole Board at Valdez's clemency hearing, and as a result, the Board recommended that Valdez' death sentence be commuted to life in prison without the possibility of parole. This newly developed information, obtained through the Mexican consulates efforts and investigation, was then presented to Governor Frank Keating and he denied clemency. While acknowledging the State of Oklahoma had not complied with Article 36 of the Vienna Convention, Governor Keating stated he believed the violation did not have a prejudicial effect on the jury's determination of guilt and sentence.

¶ 10 In this subsequent Application for Post-Conviction Relief, Petitioner raises four grounds for relief:

1. This Court must follow the decision of the International Court of Justice in LaGrand and provide relief on the basis of Oklahoma's admitted violation of his rights under Article 36 of the Vienna Convention on Consular Relations;

2. Mr. Valdez is entitled to relief regardless of proof that Oklahoma's violation of Article 36 was prejudicial;

3. This Court must afford Mr. Valdez a full and fair opportunity to challenge his conviction and sentence on the basis of Oklahoma's admitted violation of Article 36; and

4. Mr. Valdez is entitled to a new trial.

¶ 11 As noted above, we must consider these claims in light of the restrictions set forth in 22 O.S.Supp. 1998 § 1089[ 22-1089](D)(8) (9). A legal basis of a claim is unavailable if: (1) it was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date; or (2) it is a new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state and had not been announced on or before that date. A factual basis of a claim is unavailable if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date. 22 O.S. 2001 § 1089[ 22-1089](D)(9).

¶ 12 Petitioner submits this Court should entertain this subsequent application for post-conviction relief on the ground that the legal basis for relief was previously unavailable. The legal basis upon which Petitioner relies is a June 27 th, 2001, decision of the International Court of Justice (hereafter "ICJ") in F.R.G. v. United States, 2001 ICJ 104 (hereafter LaGrand).

¶ 13 The LaGrand case arose after the State of Arizona arrested, tried, and convicted two German nationals, the LaGrand brothers, without giving them notice of their rights under Article 36 of the Vienna Convention. The brothers did not assert their right to contact and obtain consular assistance until after their convictions and sentences were affirmed in state appellate proceedings. The Ninth Circuit affirmed the federal district court's denial of habeas corpus relief on the claim relating to the Article 36 Convention violation on grounds of procedural default. LaGrand v. Stewart, 133 F.3d 1253, 1259 (9 th Cir. 1998), cert. denied, 525 U.S. 971, 191 S.Ct. 422, 142 L.Ed.2d 343 (1998). It was not until after the Ninth Circuit's decision that the LaGrand brothers were formally notified of their rights to consular access. Even though the Government of Germany attempted to intervene and provisional orders were issued by the ICJ, the brothers were still executed.

¶ 14 In LaGrand, the ICJ found the United States, through the State of Arizona, had violated Article 36 of the Vienna Convention. It held this breach not only violated the rights of Germany under the treaty, but also violated the individual rights of the LaGrand brothers. F.R.G. v. United States, 2001 ICJ 104, ¶ 77 ("Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person.") ICJ held prejudice need not be shown to a show a violation of Article 36 of the Convention. Id. at ¶ 74.

¶ 15 The ICJ also held the application of the rule of "procedural default" cannot be applied by the states individually or by the United States to prevent review of an Article 36 violation. Id. at ¶¶ 90-91. Specifically, the ICJ noted with reference to the LaGrands, that although the federal courts examined the claim of ineffective counsel, the procedural default rule "prevented them from attaching any legal significance to the fact, inter alia, that the violations of . . . Article 36, paragraph 1, prevented Germany, in a timely fashion, from retaining private counsel for them and otherwise assisting in their defence as provided for by the Convention." Id. at ¶ 91. Accordingly, the rule of procedural default, in the LaGrand case, prevented "the full effect from being given to the purposes for which the rights accorded under this article are intended." Id.

¶ 16 Petitioner submits this Court must follow the decision of the ICJ in LaGrand and provide relief to Petitioner on the basis of Oklahoma's admitted violation of his rights under Article 36 of the Vienna Convention. Petitioner advances several reasons in support of this proposition. First, because the United States signed and ratified the Optional Protocol to the Vienna Convention as well as the U.N. Charter acknowledging compliance with the decisions of the ICJ, it is bound by the ICJ's rulings concerning interpretation or application of the Convention. Second, principles of stare decisis require this Court to follow the ruling in LaGrand. Third, the doctrine of issue preclusion also makes the decision in LaGrand binding on the United States, because the United States fully developed, defended and argued its position in LaGrand, and knew it would be bound by the ICJ's decision. Fourth, under the rule of pacta sunt servanda, the United States is bound to follow the law of the treaties. Fifth, to apply the holding of the ICJ to some foreign nationals and not to others would violate the equal protection clause of the U.S. Constitution. Sixth, denying LaGrand's interpretation of Article 36 rights to Mr. Valdez because he is not German would create a non-uniform result contrary to the foreign relations law policy designed to achieve uniformity of result despite different legal systems.

¶ 17 Finally, Petitioner submits the State of Oklahoma is bound by the law of treaties to the same extent as the United States. U.S.Const., art. VI, § 2; Okla.Const.art.I, § 1. In its Amicus brief, the Government of Mexico also contends the State of Oklahoma cannot advance its doctrine of procedural default to preclude review of Valdez' claims because application of the doctrine would violate the Supremacy Clause. In LaGrand, the ICJ ruled the application of the rule of procedural default effectively prevented "full effect from being given to the purposes for which the rights accorded under this article [Article 36] are intended." LaGrand, 2001 ICJ 104, ¶ 91. In this case, application of the rule of procedural default would preclude this Court's ability to review and consider the merits of Valdez' claims, and Petitioner and the Government of Mexico submit the doctrine must give way to give full effect to the purposes of Article 36 of the Convention.

¶ 18 The State of Oklahoma argues LaGrand is not binding on this Court. While acknowledging federal statutes and treaties are the supreme law of the land, U.S.Const., Art. IV, § 2, the State also argues the Supremacy clause does not convert violations of treaty provisions into violations of constitutional rights. The State of Oklahoma insists Petitioner has procedurally defaulted this claim because it is not based upon new law, and this Court, under the limited review afforded under Oklahoma's Capital Post-Conviction Act, is not entitled to grant relief on that basis.

¶ 19 The 1995 Amendments to the Capital Post-Conviction Procedure Act greatly circumscribed this Court's power to apply intervening changes in the law to post-conviction applicants. See e.g. Walker v. State, 1997 OK CR 3, 31, f. 42, 933 P.2d 327, 337-338, f. 42, cert. denied, 521 U.S. 1125, 117 S.Ct. 2524, 138 L.Ed.2d 1024 (1997). Now under the Act, for an alleged intervening change in the law to constitute sufficient reason for raising a claim in a subsequent proceeding to secure relief, a petitioner must show the intervening change in the law was unavailable at the time of his direct appeal or his original application. 22. O.S. 2001, § 1089(D)(9). This Petitioner cannot do.

¶ 20 In Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998), the Supreme Court held Breard had procedurally defaulted his claim to a violation of Article 36 of the Vienna Convention when he did not raise the claim in state court proceedings below. In reaching this decision, the Court explained that while giving

respectful consideration to the interpretation of an international treaty rendered by an international court with jurisdiction to interpret such, it has been recognized in international law that, absent a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State.

523 U.S. at 375, 118 S.Ct. at 1354; see also Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108 S.Ct. 2104, 2108, 100 L.Ed.2d 722 (1988). The Supreme Court noted the language of the Convention which provides the rights expressed in the Convention "shall be exercised in conformity with the laws and regulations of the receiving State" provided that the laws of the receiving State "must enable the full effect to be given to the purposes for which the rights accorded under this Article are intended." Article 2, 21 U.S.T. at 101. The Supreme Court also recognized the rule of procedural default applies to violations of the U.S. Constitution as well. Breard, id., 523 U.S. at 376, 118 S.Ct. at 1355.

¶ 21 The State of Oklahoma submits, and we agree, that the legal basis for his claim was available to him from the time of his arrest, and consequently at the time of his first post-conviction application. In fact, other defendants in Oklahoma have raised claims relating to violation of the consular notification provisions of the Vienna Conviction and Petitioner has not advanced a reasonable explanation for his failure to previously assert the violation. See Flores v. State, 1999 OK CR 52, 994 P.2d 782; Martinez v. State, 1999 OK CR 33, 984 P.2d 813; Al-Mosawi v. State, 1998 OK CR 18, 956 P.2d 906. Therefore, the basis of Petitioner's claim — that his rights were violated when Oklahoma did not notify him of his right to consular notification under the Convention — could have reasonably been formulated prior to the ICJ decision in LaGrand.

¶ 22 Further, LaGrand is not a "new rule of constitutional law that was given retroactive effect by the United States Supreme Court or a court of appellate jurisdiction of this state." 22 O.S. 2001 § 1089[ 22-1089](D)(9). Only that portion of LaGrand which pronounced the Convention confers "individual rights" and which addressed our doctrine of procedural default is arguably new "law." Whether the Convention creates individual rights has been raised in numerous courts across the country for years, and could reasonably have been formulated prior to the ICJ decision in LaGrand. Whether the treaty creates individually enforceable rights or not, the United States Supreme Court in Breard specifically rejected the contention that the doctrine of procedural default was not applicable to provisions of the Vienna Convention and until such time as the supreme arbiter of the law of the United States changes its ruling, its decision in Breard controls this issue. Petitioner cannot be afforded review under our statutes on the ground that the ICJ's interpretation of the Convention in LaGrand constitutes a new rule of constitutional law.

¶ 23 Accordingly, we are not persuaded by Petitioner's claim that rules of procedural default may not be applied to claims arising from a violation of Article 36 of the Vienna Convention. The legal basis for the claim is not new and was available at the time of Petitioner's first Application for Post-conviction Relief regardless of the ICJ's decision in LaGrand. For this Court to decide the ICJ's ruling overrules a binding decision of the United States Supreme Court and affords a judicial remedy to an individual for a violation of the Convention would interfere with the nation's foreign affairs and run afoul of the U.S. Constitution.

¶ 24 For these reasons, this Court cannot reach the merits of Petitioner's subsequent Application for Post-Conviction Relief on the ground that the legal basis for relief was previously unavailable. However, despite the parties' statements the contrary, we believe this Court should review this subsequent Application for Post-Conviction Relief on the ground that it would appear no factual basis of the Petitioner's prior medical problems was ascertained by prior trial or appellate counsel before the filing of Petitioner's prior appeals. 22 O.S.Supp. 1998 § 1089[ 22-1089](D)(9).

¶ 25 Petitioner was charged with murder in 1989. He had court-appointed counsel. His court-appointed counsel was inexperienced in capital cases; in fact, Petitioner's case was his counsel's first capital case. Petitioner's trial counsel did not have the financial resources available to properly investigate Petitioner's childhood, social history or other aspects of his life. While arguments can be made that trial counsel could have requested funds to hire expert witnesses, it is evident that trial counsel's inexperience in capital litigation caused him to believe such funds were unavailable. We cannot ignore the significance and importance of the factual evidence discovered with the assistance of the Mexican Consulate. It is evident from the record before this Court that the Government of Mexico would have intervened in the case, assisted with Petitioner's defense, and provided resources to ensure that he received a fair trial and sentencing hearing.

¶ 26 While we have no doubt the evidence discovered with the assistance of the Mexican Consulate could have been discovered earlier, under the unique circumstances of this case, it is plain that the evidence was not discovered due to trial counsel's inexperience and ineffectiveness. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Strickland sets forth a two-part test which must be applied to determine whether a defendant has been denied effective assistance of counsel. First, the defendant must show that counsel's performance was deficient, and second, he must show the deficient performance prejudiced the defense. Unless the defendant makes both showings, "it cannot be said that the conviction. . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id. at 466 U.S. at 687, 104 S.Ct. at 2064.

¶ 27 Although this Court has addressed claims relating to trial counsel's effectiveness in his prior appeals, in those appeals, this Court was not presented with a claim that trial court failed to discover evidence relating to Petitioner's social, mental, and health history. This Court was not presented with a claim that trial counsel did not inform Petitioner he could have obtained financial, legal and investigative assistance from his consulate. We believe trial counsel, as well as representatives of the State who had contact with Petitioner prior to trial and knew he was a citizen of Mexico, failed in their duties to inform Petitioner of his right to contact his consulate. In hindsight, and so many years following Petitioner's conviction and direct appeal, it is difficult to assess the effect consular assistance, a thorough background investigation and adequate legal representation would have had. However, this Court cannot have confidence in the jury's sentencing determination and affirm its assessment of a death sentence where the jury was not presented with very significant and important evidence bearing upon Petitioner's mental status and psyche at the time of the crime. Absent the presentation of this evidence, we find there is a reasonable probability that the sentencer might "have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 466 U.S. at 695, 104 S.Ct. at 2069.

¶ 28 By our ruling today, this Court exercises its power to grant relief when an error complained of has resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right. 20 O.S. 2001, § 3001.1. Accordingly, we hereby GRANT Petitioner's Subsequent Application for Post-Conviction Relief, and REMAND this case to the District Court of Grady County for RESENTENCING .

OPINION BY: JOHNSON, V.P.J.

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART CHAPEL, J.: CONCURS STRUBHAR, J.: CONCURS LILE, J.: SPECIALLY CONCURS