Summary
holding that, even if the Vienna Convention is judicially enforceable, a petitioner must show prejudice from its violation, which is a high burden
Summary of this case from Velasco v. FilsonOpinion
No. 09–99005.
02-11-2016
Hector Juan AYALA, Petitioner–Appellant, v. Ronald DAVIS, Warden, Respondent–Appellee.
Robin L. Phillips and Anthony J. Dain of Procopio, Cory, Hargreaves & Savitch LLP, San Diego, CA, for Petitioner–Appellant. Robin H. Urbanski, Deputy Attorney General of California, San Diego, CA, for Respondent–Appellee.
Robin L. Phillips and Anthony J. Dain of Procopio, Cory, Hargreaves & Savitch LLP, San Diego, CA, for Petitioner–Appellant.
Robin H. Urbanski, Deputy Attorney General of California, San Diego, CA, for Respondent–Appellee.
OPINION
PER CURIAM:
We declined to address Ayala's Vienna Convention claim in our previous opinion because we granted relief based on his Batson claims. Ayala v. Wong, 756 F.3d 656, 662 n. 2 (9th Cir.2014). The Supreme Court reversed our decision regarding those claims and remanded for further proceedings. Davis v. Ayala, ––– U.S. ––––, 135 S.Ct. 2187, 192 L.Ed.2d 323 (2015). We now affirm the district court's denial of Ayala's Vienna Convention claim and its denial of the writ of habeas corpus.
A state prisoner such as Ayala faces an array of obstacles to obtaining federal habeas relief for a state's failure to give consular notice in violation of the Vienna Convention. See Medellin v. Dretke, 544 U.S. 660, 664–66, 125 S.Ct. 2088, 161 L.Ed.2d 982 (2005). The state court denied Ayala's Vienna Convention claim because, among other reasons, he did not establish prejudice. In re Ayala, S081267, 2000 Cal. LEXIS 6833, at *1 (Aug. 30, 2000) (citing Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998)). Ayala does not dispute that prejudice is required. Thus, our conclusion that the state court's no prejudice finding was not “objectively unreasonable” precludes granting relief in this AEDPA case. Davis, 135 S.Ct. at 2198.
In Breard, the Supreme Court observed that no showing of prejudice “could even arguably be made” in that case as a result of the violation of the Vienna Convention. 523 U.S. at 377, 118 S.Ct. 1352. Rather, it found that petitioner's claim that he would have accepted a guilty plea to avoid the death penalty if he had been given advice by the consulate was “far more speculative than the claims of prejudice courts routinely reject” in ineffective assistance of counsel cases. Id. Ayala claims that if he had been afforded consular notice, Mexican officials would have sought to persuade the district attorney to reconsider his decision to seek the death penalty and that these officials have sometimes had success in this regard in the past. Ayala, however, did not present any evidence suggesting that the Mexican Consulate would have succeeded in this case, particularly in light of the facts of the crime at issue. Ayala also claims that the Consulate could have secured a “critical guilt-phase witness,” but gives no inkling of who this witness is or what he would have said. Finally, Ayala contends that the Consulate would have sent an observer to his trial and given him legal advice. Ayala was represented at trial, however, by two attorneys whose performance has not been called into question. Although Ayala's prejudice argument is stronger than Breard's, under AEDPA's deferential review it was not unreasonable for the California Supreme Court to conclude that he has not shown sufficient prejudice to prevail on his Vienna Convention claim.
The district court's denial of Ayala's writ of habeas corpus is affirmed.