No. WR-61,600-04
Filed: August 6, 2008. DO NOT PUBLISH.
On Application for Post-Conviction Writ of Habeas Corpus and Motion for Stay of Execution from Cause No. 0805594. In The Criminal District Court Number Three, Harris County.
Per Curiam. Price, j., filed a concurring statement. Womack, j., not participating.
PER CURIAM.
We have before us a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5, and a motion for stay of execution. In November 2002, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Chi v. State, No. AP-74,492 (Tex.Crim.App. May 26, 2004) (not designated for publication). Pursuant to Article 11.071, § 4A, applicant filed in the convicting court his initial post-conviction application for writ of habeas corpus in which he raised seven claims, including a claim alleging the violation of his rights under Article 36 of the Vienna Convention. The convicting court recommended that we deny his claims. We adopted the trial court's findings of fact and conclusions of law and denied habeas relief. Ex parte Chi, No. WR-61,600-01 (Tex Crim. App. Apr. 27, 2005) (not designated for publication). Applicant later filed a subsequent application pursuant to Article 11.071, § 5, and a writ of prohibition, in which he challenged the constitutionality of the drug protocol used to carry out executions. After filing and setting both cases, this Court dismissed the subsequent application and denied the writ of prohibition. Ex parte Chi, S.W.3d, Nos. AP-75,930 and 931 (Tex.Crim.App. June 9, 2008). In this newly filed subsequent application, applicant asserts that he is entitled to a stay of execution and a judicial review and consideration of whether the violation of his rights under Article 36 of the Vienna Convention prejudiced him. He asserts that this review is mandated by the Avena judgment of the International Court of Justice, the Bilateral Treaty of Friendship, Commerce, and Consular Rights with Honduras, and the United States Supreme Court's opinion in Medellin v. Texas, 552 U.S. (2008). We have reviewed applicant's subsequent application and find that it does not meet the dictates of Article 11.071, § 5, and should be dismissed. Art. 11.071, § 5(a). Applicant's motion for stay of execution is denied. IT IS SO ORDERED THIS THE 6th DAY OF AUGUST, 2008.
PRICE, J., filed a concurring statement.
CONCURRING STATEMENT
The applicant is a Honduran national. In this, his second subsequent post-conviction application for writ of habeas corpus, the applicant alleges for the first time that he cannot be executed without violating mandatory obligations mutually undertaken between the United States and Honduras under the Bilateral Treaty of Friendship, Commerce and Consular Rights with Honduras. He argues that this particular treaty, unlike the treaties at issue in Medellin v. Texas, are self-executing. He also argues that they confer individual rights. He argues that, under the Supremacy Clause, the treaty obligations undertaken by the United States in the Treaty of Friendship, Commerce and Consular Rights with Honduras are binding upon and enforceable in our domestic courts, and should trump any contrary state law. Among those treaty obligations is the obligation to afford Honduran nationals in this country "that degree of protection that is required by international law." This, he asserts, incorporates the protection of the Vienna Convention on Consular Relations, which includes the interpretation of Section 36 of the Vienna Convention which was issued by the International Court of Justice in the Avena decision. Assuming that the treaty that the applicant now invokes is indeed self-executing, and that it actually confers individually enforceable rights upon Honduran nationals in the United States, the applicant still faces an insurmountable burden in raising this claim for the first time in a subsequent writ application. Under the Supreme Court's opinion in Sanchez-Llamas v. Oregon, unless the treaty in question contains "a clear and express statement to the contrary, the procedural rules of the forum State govern the implementation of the treaty in that State." Thus, notwithstanding the applicant's Supremacy Clause argument, we are bound by Article 11.071, Section 5's restrictions on subsequent post-conviction habeas corpus applications absent "a clear and express statement" in the Treaty of Friendship, Commerce and Consular Rights with Honduras to the contrary. The applicant does not direct us to any statement in the treaty that I would regard as a "clear and express" indication that our abuse-of-the-writ provisions (or any other state doctrine of procedural default) should not apply. In the alternative, the applicant argues that he satisfies Section 5 of Article 11.071 because of language in Medellin v. Texas suggesting that the Treaty of Friendship, Commerce and Consular Relations between the United States and Honduras is, in fact, self-executing and that, as such, it is enforceable in our domestic courts. He contends that this observation in Medellin constitutes a newly available legal basis for decision under Article 11.071, Section 5(d). But that part of the Medellin opinion to which the applicant alludes does not seem to announce a new legal doctrine that was "not recognized by or could not have been reasonably formulated from a final decision of" any of our domestic appellate courts. Indeed, it seems apparent from the case law cited by the Supreme Court at this point in its opinion that the law before Medellin was sufficiently clear that we may very well have regarded the treaty that the applicant now invokes as self-executing, and (assuming we also found that it confers an individually enforceable right) thus, enforceable in the courts of Texas had he raised the claim timely at the first available opportunity. But he did not, and we are therefore constrained by the statutory abuse-of-the-writ doctrine. With these additional observations, I join the Court's order.