No. WR-41,743-03
Delivered: June 27, 2011. DO NOT PUBLISH.
On Application for Post-Conviction Writ of Habeas Corpus and Motion for Stay of Execution in Cause No. 1994-cr-4696-W3 in the 186th District Court Bexar County.
Price, J., filed a concurring statement in which Johnson and Alcala, JJ., join. Keasler, J., filed a concurring statement in which Meyers, J., joins. Hervey and Cochran, JJ., not participating.
PER CURIAM.
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5. In July 1995, a jury convicted applicant 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. Leal v. State, No. AP-72,210 (Tex. Crim. App. Feb. 4, 1998) (not designated for publication). In September 1997, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. This Court denied applicant relief. Ex parte Leal, No. WR-41,743-01 (Tex. Crim. App. Oct. 20, 1999) (not designated for publication). Applicant filed his first subsequent application in the trial court in March 2005. This Court dismissed that application because it failed to meet the dictates of Article 11.071, § 5. Ex parte Leal, No. WR-41,743-02 (Tex. Crim. App. Mar. 7, 2007) (not designated for publication). This, his second subsequent application, was filed in the trial court on June 23, 2011. In this application, applicant asserts that (1) he is a Mexican national; (2) his right to consular notification was violated, therefore, the International Court of Justice's decision in the Case Concerning Avena and other Mexican Nationals ( Mex. v. U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31), entitles him to a new review of his case; and (3) his imminent execution should be stayed pending passage of legislation regarding procedures on how to implement this review, which legislation is currently pending in Congress. We have reviewed the application and find that applicant has failed to meet the requirements of Article 11.071, § 5. Accordingly, we dismiss his application. Applicant alternatively argues that we should consider his application under our original habeas jurisdiction or reconsider the claim under one of his previously filed Article 11.071 applications. This we decline to do. Applicant's motion for stay of execution is denied. IT IS SO ORDERED THIS THE 27th DAY OF JUNE, 2011.
PRICE, J., filed a concurring statement in which Johnson and Alcala, JJ., joined.
CONCURRING STATEMENT
There is no dispute that allowing the applicant's execution to go forward without first affording him a hearing in satisfaction of the International Court of Justice's judgment in the Avena case, would violate the United States's treaty obligations under the Vienna Convention on Consular Relations, the Optional Protocol, and Article 94 of the United Nations Charter — obligations that are binding on Texas by way of the Supremacy Clause of the United States Constitution. The United States Supreme Court has acknowledged as much, while holding that the various treaty provisions that bind the United States to comply with an ICJ decision are not self-executing, and thus require legislation for their implementation. To date, no such legislation has passed. Lamentably, the applicant finds himself in possession of an apparent right under international law without an actual remedy under domestic law. To satisfy the requirements of Article 11.071, Section 5(a)(1), justifying a subsequent application for writ of habeas corpus and a stay of execution, the applicant invokes proposed legislation that was introduced two weeks ago in Congress that would obligate the federal courts (but not state courts) to conduct the kind of hearing that the Avena case mandates before he may be executed consistent with our treaty obligations. Though this is apparently the third time implementing legislation has been introduced in Congress, the applicant's experts assure us that the current bill enjoys widespread bipartisan support as well as the support of the Executive Branch. Even so, the legislative process being what it is, the bill is not likely to pass until the end of this calendar year at the earliest. I agree with the Court that pending legislation constitutes neither new law nor new facts — at least not new facts entitling the applicant to relief — in contemplation of Article 11.071, Section 5(a)(1). The applicant asks us, alternatively, to treat his application as an original writ application, unhindered by the restraints of Article 11.071. But the application seeks relief from a capital conviction and/or punishment, and it is my understanding that "Article 11.071 presently provides the exclusive procedure for the exercise of this Court's original habeas jurisdiction when the applicant seeks relief from a judgment imposing a penalty of death." Nor does the nascent legislation create a compelling enough reason to reopen the applicant's initial writ application, as we did in Ex parte Moreno. In my view, the applicant currently lacks a basis for a remedy in our state courts in Texas. This does not mean he lacks any state remedy at all. The Executive Department has the power, unfettered as ours is, to grant the applicant a reprieve. And it is precisely when the Judicial Department proves institutionally unequal to the task that the exercise of executive clemency is most appropriate. With the recommendation of the Board of Pardons and Paroles, the Governor may effectively stay the applicant's execution until such time as legislation passes that finally implements our indisputable treaty obligations and provides a remedy for the applicant's right under international law. By himself, the Governor can grant one thirty-day reprieve, affording the trial court an opportunity to delay re-imposition of sentence until such time as implementing legislation may pass. In this way, Texas can still honor its duty under the Supremacy Clause to honor the treaty obligations of the United States, just as Justice Stevens has implored us to do. With these comments, I regretfully concur in the Court's order.
Keasler, J., filed a concurring statement in which Meyers, J., joined.
CONCURRING STATEMENT
I join in the Court's decision to deny Humberto Leal's application to stay his execution scheduled for Thursday, July, 7, 2011, and to dismiss his second subsequent application under Texas Code of Criminal Procedure Article 11.071 Section 5. In his application for a stay of execution and application for habeas relief Leal raises three basic points. First, he argues that the Consular Compliance Act, which has been introduced in the United States House by Senator Patrick Leahy, would require that Leal receive review and reconsideration of his conviction and sentence under the International Court of Justice's (ICJ's) Avena decision. And second, Leal contends that he is entitled to habeas review because the Inter-American Commission on Human Rights (IACHR) has concluded that Leal's case was prejudiced by the Vienna Convention Violation. We have previously determined that analogous arguments did not meet the requirements of Section 5 when they were raised by Jose Ernesto Medellin in his second subsequent state application for a writ of habeas corpus. Pending legislation is not the law, and any argument that the Consular Compliance Act will be passed by Congress and signed into law by the President is purely speculative. We are bound to follow the law as it is and, at this time, there is nothing that makes the Avena decision binding law. Next, Leal cites no authority and fails to explain how the IACHR's determination is binding on this Court or any other court in the United States. Leal also complains that his execution would violate his right to free speech and to petition Congress to enforce Avena. But Leal has not established that his execution, pursuant to a valid death sentence, presents an unreasonable restriction on these rights. Because the "Consular Compliance Act" is not the law, it cannot legitimately be used as support for this argument. In this instance, the State's right to finality trumps the rights Leal asserts. There is nothing in the United States Constitution that prohibits the State from proceeding with Leal's execution. Leal has failed to show that his current claims meet the requirements of Section 5. As a result, I agree with denial of his motion to stay and the dismissal of Leal's second subsequent habeas application.