Opinion
No. 3:02-CV-1716-M
April 13, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Movant is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
Petitioner pled guilty to murder and two charges of aggravated assault. State v. Jimenez, Nos. F-99-70821-HPH, F-99-71063-H, and No. F-99-71064-H (Crim. Dist. Ct. No. One Dallas County, Tex. Jan. 25, 2000). Pursuant to the plea agreement, the trial court assessed punishment at fifty years on the murder conviction and twenty years each on the aggravated assault convictions, to run concurrently. Id. Movant appealed his convictions which were affirmed in an unpublished opinion. Jimenez v. State, Nos. 10-00-0013 7-CR, 10-00-0013 8-CR, and 10-00-00139-CR. (Tex.App.-Waco 2001. pet. ref d). His petition for discretionary review was refused on May 9, 2001. P.D.R. No. 389-01. Movant did not file a state writ application. However, he filed a petition for writ of certiorari to the United States Supreme Court which was denied on October 1, 2001. Movant then executed his federal writ petition on June 15, 2002.
Exhaustion of State Court Remedies
Movant exhausted his state court remedies.
Issue
Movant alleges that the trial court erred when it failed to suppress his written statements, which he claims were taken in violation of the Vienna Convention on Consular Relations.
Movant's voluntary statements are State's Exhibits Nos. 1-3 of the Reporter's Record. The Reporter's Record contains the transcript of the hearing on the Motion to Suppress, which this Court refers to as "Tr."
The Vienna Convention on Consular Relations is a multilateral treaty. Article 36 of the Vienna Convention specifically addresses communication with the foreign national. It provides, in pertinent part:
1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
. . . .
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or custody pending trial or is detained in any matter. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph.
Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, 21 U.S.T. 77, 101.
Standard of Review
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d). The AEDPA applies to all federal habeas corpus petitions that were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997). The refusal of a movant's Petition for Discretionary Review is a denial on the merits.
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.
Analysis
Movant claims that the trial court should have suppressed his statements to the police because they were taken in violation of the Vienna Convention on Consular Relations. On October 1, 1999, the trial court held a hearing on Movant's Motion to Suppress his statements to the police. The parties thoroughly briefed the legal issues for the trial court. After hearing witnesses both for Movant and for the State, the trial court took the matter under advisement. On October 15, 1999, the trial court entered findings of fact and conclusions of law. Trial Court Record ("Rec.") at 68-70.
The trial court found the following facts to be true. Movant made his written statements when he was in the custody of the Dallas Police Department. When Detective Reideler took Movant's statements, the detective was not aware that Movant was not a United States citizen and Movant failed to tell anyone that he was not a United States citizen or that he was a citizen of Mexico. Defendant has lived in the United States since he was three years old and speaks and reads the English language. He was familiar with his Miranda rights when he was arrested. Before he made the written statements he was given Miranda warnings and a warning under TEX. CODE CRIM. P. art. 38.22. Movant voluntarily waived his right to remain silent and his right to speak to an attorney. He was not informed of his right under the Vienna Convention to contact the Mexican Consulate. He did not ask to speak to an attorney or to contact anyone. Movant fully understood his constitutional and statutory rights before he made the statements. The written statements were taken and witnessed in compliance with Texas law. Movant made and signed the statements without threats, compulsion, or coercion. Movant was aware of and fully understood the content of the statements when he signed them. No force was used or promise made to persuade Movant to make or sign the statements. Movant freely, knowingly, intelligently, and voluntarily waived his constitutional and statutory rights before he made the statements.
The trial court found that no causal connection existed between the failure to advise Movant under the Vienna Convention and the taking of his statements. Rec. at 70. It further found that Movant failed to show any prejudice resulting from the failure to advise him under the Vienna Convention. Id. The trial court overruled the Motion to Suppress the statements.
The state appellate court noted:
It is undisputed that appellant is a citizen of Mexico and that he was never informed of his rights to contact the Mexican Consulate. Appellant was properly Mirandized twice before and once after he gave his statements. He acknowledged that he knew he had a right to a lawyer and chose to waive that right. He stated that he was not threatened or coerced, and that he signed the statements knowingly and voluntarily. He stated that he knew of the existence of the Consulate, but did not ask to speak to a Consulate representative.Jimenez, slip op. at 2. The state appellate court found that Texas' exclusionary rule, which is applicable to evidence obtained in violation of any provisions of the federal or state constitutions or laws, does not provide a remedy for violations of Article 36 of the Vienna Convention on Consular Relations. Jimenez, slip op. at 3 (citing Rocha v. State, 16 S.W.3d 1, 13 (Tex.Crim.App. 2000)). The state appellate court further held that the dictates of the Vienna Convention on Consular Relations are not enforceable in Texas criminal courts, and the violation of that treaty does not warrant the suppression of evidence. The state appellate court thus held that the trial court did not abuse its discretion in refusing to suppress the evidence. Jimenez, slip op. at 4.
On federal habeas corpus review, the court must presume that the State court's determination of factual issues is correct. 28 U.S.C. § 2254(e)(1). A petitioner has the burden of rebutting the presumption by clear and convincing evidence. Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). This Court finds that Movant has failed to overcome the presumption of correctness of the state court findings of fact.
This Court must also review the record to determine if the state court proceedings "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1) (Emphasis added). In Breard v. Greene, 523 U.S. 371, 376 (1998), a state prisoner who was facing execution claimed in a petition for writ of habeas corpus that a "Vienna Convention claim" entitled him to habeas corpus relief. The United States Supreme Court found any such claim to be procedurally defaulted. Breard, 523 U.S. at 376. Assuming that the novelty of the claim had kept the defendant from discovering it earlier, the Supreme Court advised that a claim that the text of the treaty creates an individual right and then imposes a remedy of suppression equal to that imposed when defendants are not given their Miranda warning would be a new rule of law that would be barred on habeas review under Teague v. Lane, 489 U.S. 288 (1989). Id. The Supreme Court also noted, in dicta, that Article 36 " arguably confers on an individual the right to consular assistance following arrest." Breard, 523 U.S. at 376 (emphasis added). Nevertheless, the Supreme Court dismissed the habeas corpus petition, finding that, even if the petitioner could overcome the procedural bar, he could not prove the Article 36 violation resulted in prejudice. Id. at 377.
On April 9, 1998, the International Court of Justice ("ICJ") unanimously ruled in favor of a "provisional measures" order, requiring the United States to "take all measures at its disposal" to stop Breard's execution, pending full adjudication by the ICJ of the treaty violation itself. This historic ruling was believed to be the first time that the International Court of Justice had intervened to halt an execution anywhere in the world.
According to the Fifth Circuit Court of Appeals, the Vienna Convention's requirement that an arresting government notify a foreign national of his right to contact his consul does not create a judicially-enforceable right of consultation between a detained foreign national and his consular office or an exclusionary rule akin to that dictated by Miranda. United States v. Jimenez-Nava, 243 F.3d 192, 198-99 (5th Cir. 2001); Faultier v. Johnson, 81 F.3d 515, 520 (5th Cir. 1996) (not recognizing a personal right under the Convention, but finding the state's failure to notify a foreign national regarding the Vienna Convention's provision providing for contacting his consulate to be harmless error, not meriting reversal). See Flores v. Johnson 210 F.3d 456, 457-458 (5th Cir. 2000) (declining to reach the merits of Flores's claim that the evidence should have been suppressed due to a Vienna Convention violation because, at best, Flores's assertion is barred by Teague v. Lane, 489 U.S. 288 (1989)).
The United States Supreme Court issued its decision on the Breard case less than two hours before his scheduled execution, In a six to three ruling, the Court denied all appeals. Following a last-minute round of emergency appeals, at 10:30 P.M. on April 14, 1998, the State of Virginia executed Angel Francisco Breard by lethal injection. On November 2, 1998, Paraguay notified the ICJ that it wished to discontinue its proceedings in that court with prejudice. With the consent of the United States, the case of Paraguay v. United States of America was removed from the ICJ list. On March 31, 2004, in another case involving the Vienna Convention, the ICJ ruled that the United States violated the rights under the Vienna Convention of forty-seven Mexicans on death row and ordered that the United States review their cases.
Assuming here, as the United States Supreme Court did in Breard, that the Vienna Convention "arguably" confers on a detainee the immediate right to consular assistance, Petitioner would not be entitled to habeas corpus relief. First, the United States Supreme Court has not clearly established that suppression of the detainee's statements is a proper remedy for a Vienna Convention violation. No provision of the convention supplies that remedy. The not even require government agents to stop speaking with a detainee after notifying him of his right to speak to his consul.
Secondly, a violation could not result in the overturning of a final judgment of conviction without a showing that the violation had an effect on the outcome. See Arizona v. Fulminante, 499 U.S. 279, 306-307 (1991). At the hearing on the motion to suppress his statements to the police officers, Movant introduced evidence that if he had known of his right under the Vienna Convention and had consulted the Mexican consular officials, they would have told him to remain silent until he consulted a lawyer. Tr. at 29. While the police officers did not tell Movant to remain silent, they did tell him that he could terminate the interview at any time. Tr. at 10-11. Further, they explained that he had the right to remain silent and not make any statement at all. Id. They told him that any statement he made could be used as evidence against him at trial or in court, that he had the right to have a lawyer present to advise him prior to and during any questioning, and that if he could not afford a lawyer, one would be appointed for him. Id. The state courts held that Movant voluntarily waived his right to remain silent and his right to a lawyer before he gave his written statements on April 1, 1999. An attorney experienced in criminal law, F. Clinton Broden, represented Movant at the examining trial on April 13, 1999, and during the remainder of the state court proceedings. In his federal habeas corpus proceeding, Movant has not overcome the presumption of correctness of the state court findings.
Movant claims that pursuant to the consulate's advice, he would have kept silent until he consulted a lawyer. However, assuming this is true, this fact falls short of demonstrating prejudice. The record shows that the Motion to Suppress was not a case-dispositive motion. Tr. at 64. An eyewitness, Krisha Marin, identified Movant from a photo lineup as a participant in the offense. State's Exhibit 4. The State would have gone to trial even without the statements. Tr. at 64. Moreover, Movant's counsel obtained a very favorable plea agreement for him after the jury had been selected. The State reduced the charge from capital murder to murder. The range of punishment for murder is five to ninety-nine years or life. Counsel obtained a plea bargain for a fifty-year sentence on the murder charge to run concurrently with his sentences on the assaults. Movant failed to show that had the Vienna Convention been followed, there is a reasonable probability that he would not have pled guilty and would have insisted on going to trial. See, e.g., Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Movant failed to prove that the state court proceedings resulted in a decision that was contrary to, or that involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. Further, he failed to prove that the decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
RECOMMENDATION
The Court recommends that the petition for writ of habeas corpus be DENIED.