Supreme Court of California Justia
Citation 46 Cal. 4th 945, 209 P.3d 908, 95 Cal. Rptr. 3d 570

In re Martinez

Filed 6/29/09

IN THE SUPREME COURT OF CALIFORNIA

In re OMAR FUENTES MARTINEZ
S141480
on Habeas Corpus.

Petitioner Omar Fuentes Martinez is a convicted capital defendant. We
affirmed his judgment on appeal. (People v. Martinez (2003) 31 Cal.4th 673.) In
his previous habeas corpus petition in 2002, petitioner contended that he is a
Mexican national and that United States law enforcement authorities failed to
inform him of his right to consular notification and assistance under the Vienna
Convention on Consular Relations April 24, 1963, article 36, 21 U.S.T. 77,
T.I.A.S. No. 6820 (the Vienna Convention). On October 13, 2004, we denied the
petition, in its entirety, on its merits.
In his previous petition, petitioner noted, but made no argument regarding,
the then-recent decision of the International Court of Justice (ICJ) in Avena and
Other Mexican Nationals (Mexico v. U.S.) 2004 I.C.J. 12 (Judgment of Mar. 31)
(Avena). In Avena, the International Court of Justice (ICJ) concluded that the
United States had violated the Vienna Convention rights of 51 Mexican nationals
then on death row, including petitioner, by failing to comply with article 36‟s
consular notification requirement (article 36). The ICJ directed the courts of the
United States to review the convictions and sentences of those Mexican nationals
to determine whether, as a result of the violation, they suffered actual prejudice.


The ICJ specifically forbade applying procedural default doctrines to bar the
required review and reconsideration. (Id. at pp. 51-52, ¶¶ 133-134; p. 54, ¶ 141.)
On February 28, 2005, former President George W. Bush issued a
Presidential Memorandum directing state courts to give effect to the Avena
decision in accordance with general principles of comity.
Based on the Avena decision and the President‟s memorandum, petitioner
filed the instant petition asserting that “[t]he Presidential determination regarding
state compliance with the rule announced in the ICJ in Avena constitutes a new
factual and legal development that was previously unavailable and which entitle[s]
petitioner to review of his claim here.” On February 14, 2007, we issued an order
to show cause why petitioner should not be granted the relief he sought.
While the petition was pending in this court, the United States Supreme
Court granted certiorari in Medellin v. Texas (2008) 552 U.S. ___ [128 S.Ct.
1346], a case involving another of the Avena defendants who, like petitioner here,
had sought reconsideration of his capital conviction in light of Avena and the
Presidential Memorandum. Accordingly, on May 23, 2007, we issued an order
directing petitioner to file his reply 30 days after finality of the Supreme Court‟s
decision in Medellin, and allowing the Attorney General an opportunity to
respond. On March 25, 2008, the Supreme Court issued its opinion in Medellin,
holding that neither Avena nor the Presidential Memorandum created binding
federal law that would preempt state procedural limitations on the filing of
successive habeas corpus petitions.
In light of Medellin, we conclude that petitioner is precluded from renewing
his Vienna Convention claim because he previously raised the issue and we denied
relief on its merits. Therefore, his petition is successive, and he fails to
demonstrate any change of circumstance or the applicability of any exception to
2
the procedural bar of successiveness that would warrant our reconsideration of his
claim.1 Therefore, we dismiss the order to show cause and deny the petition.
I. STATEMENT OF FACTS AND THE CASE
The facts are drawn from petitioner‟s automatic appeal. (People v.
Martinez, supra, 31 Cal.4th at pp. 678-680.)
Petitioner‟s murder conviction arises from the 1988 murder of Victor
Castillo in Riverside County. Castillo and Jose Manuel Meza performed casual
labor for petitioner. Petitioner owed back wages to Castillo, Meza, and some other
laborers, but when confronted by these men, petitioner showed hostility and
reluctance to pay. On at least two occasions, petitioner displayed firearms,
including a machine gun. About a week before the murder, Raul Ibarra confronted
petitioner and told him to pay “all those guys” the money he owed them.
Petitioner pointed a firearm at Ibarra and told him to mind his own business. On
the day before Castillo‟s murder, Meza filed a complaint for back wages with the
Labor Commissioner.
On the evening of November 4, 1988, Castillo joined Meza, Jose Borquez,
and others talking and drinking beer outside the Victoria Street home of Meza‟s
brother. Petitioner drove by in his blue Toyota automobile, with his friend, Jose
Abel Camacho in the passenger‟s seat. Castillo approached the car, and when he

1
Although not raised by the Attorney General or discussed by either party,
also relevant to this case is the related procedural bar of repetitiveness. “It is, of
course, the rule that a petition for habeas corpus based on the same grounds as
those of a previously denied petition will itself be denied when there has been no
change in the facts or law substantially affecting the rights of the petitioner.” (In
re Martin
(1987) 44 Cal.3d 1, 27, fn. 3; see In re Miller (1941) 17 Cal.2d 734,
735.) In this case, the petition is not only barred as successive but also because it
is repetitive.
3


was about five feet away, petitioner shouted “Here you are, motherf—-r,” raised
his AK-47 rifle and fired at Castillo two or three times, killing him.
Petitioner next drove to Ibarra‟s home on Grove Street, where Leonardo
Armenta was visiting. Armenta heard gunshots and went outside, where he saw
petitioner driving his blue Toyota. Someone else was with him, probably
Camacho. As petitioner approached the house, he raised an AK-47 rifle and
commenced firing at Armenta, who ran inside. Armenta thought he could
distinguish two different rifles being fired. Approximately 45 bullets were fired
into the house, but no one was harmed
although one bullet missed Armenta by
only a foot. This incident led to attempted murder and firearm discharge counts
against petitioner.
Officers Kilmer and Lino spotted petitioner‟s car headed away from
Riverside. One taillight was out and the car was weaving from side to side. The
officers ordered petitioner and Camacho to stop and exit the car. Petitioner was
unsteady and appeared to be intoxicated. The officers handcuffed the men and
noticed the car‟s left and right rear windows were shattered. They discovered
loaded firearms in the car and numerous spent casings scattered throughout. The
officers performed a field sobriety test on petitioner and concluded he was
intoxicated. The officers arrested and transported petitioner and Camacho to
county jail. A followup investigation produced additional circumstantial evidence
linking petitioner to the crimes.
The defense attempted to cast doubt on the prosecution‟s version of the
shootings. Witnesses Meza and Borquez, contrary to their earlier testimony, now
indicated they had not seen petitioner shooting at them or Castillo. The defense
also called Camacho, who denied that he or petitioner had fired shots at anyone,
contrary to his earlier testimony at his own trial that petitioner had fired his rifle at
4
the Victoria Street and Grove Street locations. Camacho testified that on the day
of the shootings, petitioner and some other men had spent two hours shooting and
drinking beer. Camacho indicated that they had been drinking earlier as well, and
that petitioner drank many more beers than the other men. Later that day,
petitioner drank more beer and also used cocaine and speed.
Following the guilt verdicts, the prosecution presented uncontradicted
evidence on the special circumstance allegation. The jury found true the
allegation that petitioner, on May 16, 1980, had been convicted of the murder of
Antonio LeFosse, in violation of section 19.02, subdivision (a)(1), of the Texas
Penal Code, a special circumstance within the meaning of California Penal Code
section 190.2, subdivision (a)(2).
At the penalty phase, the prosecution introduced the evidence underlying
petitioner‟s Texas homicide conviction. The prosecution also introduced evidence
that petitioner had pointed a firearm at an apartment manager in Riverside, and
had possessed a homemade metal “shank” concealed in a mattress cover in his jail
cell. The defense introduced evidence of petitioner‟s Mexican background, his
poverty and difficult upbringing, and his life in the United States. On rebuttal, the
prosecutor introduced evidence of petitioner‟s disciplinary problems in a Texas
prison, his transfer to a Mexican prison, and his failure to report to authorities
while on limited leave from that prison.
Following the penalty phase, the jury returned a death sentence. As noted,
we affirmed the judgment. (People v. Martinez, supra, 31 Cal.4th at p. 740.)
On December 13, 2002, petitioner filed his first petition for writ of habeas
corpus in this court. Petitioner‟s sixth claim asserted that law enforcement
authorities violated his right to consular notification under the Vienna Convention.
5
Petitioner stated that he is a Mexican national, a fact of which the police were
aware because the booking records report his place of birth as Mexico.
The petition asserted that, notwithstanding their knowledge, police failed to
inform petitioner of his right to contact the Mexican consulate. According to a
declaration of the Mexican Consul General, had the consulate been informed, it
would have treated petitioner‟s case as a “high priority situation,” and would have
“contact[ed] him as soon as possible in order to explain how the Consulate [might]
assist him and his attorney in his defense.” Specifically, “Mexican consular
officials assist the defense in obtaining evidence, including documentary evidence
from Mexico, in locating and transporting witnesses from Mexico to the United
States to testify, and in ensuring that the Mexican national has . . . adequate
representation and interpretation assistance during the trial. The Consulate
attempts to satisfy any particular request from defense attorneys for assistance or
information when such assistance or information is within our power to provide.”
According to petitioner, during jury selection — which was four years after
his arrest — he asked his attorney to request a continuance so he could obtain the
assistance of the Mexican consulate. His attorney did so, reluctantly, because he
said he had “been able to arrange whatever we thought was necessary without
going through the consulate, and because I can make no representation as to what
the consulate can do for him in this matter, other than what we are doing — I am
doing as his counsel and our office is doing as his counsel.” Asked by the court to
explain his request, petitioner said he wanted the continuance to “find out what the
consulate might be able to do for me.” The court denied the request but saw “no
problem” with petitioner contacting the consulate.
Petitioner‟s first petition went on to state that, after he was convicted and
sentenced, habeas corpus counsel sought the assistance of the Mexican consul in
6
locating witnesses in Mexico that neither the prosecution nor defense had been
able to find during trial. One of those witnesses was Leonardo Armenta, the
attempted murder victim. Petitioner asserted that Armenta would have testified
that he did not recognize petitioner as the shooter, contrary to the testimony he
gave at the preliminary hearing, which was read at petitioner‟s trial.
The other potential witness was petitioner‟s brother, Maximino “Chimino”
Aviles who, petitioner asserted, would have been able to provide a “wealth of
information regarding petitioner‟s background at the penalty phase. For example,
Chimino reported the problems petitioner had in learning to speak as a young
child; Chimino also witnessed head injuries suffered by petitioner; Chimino
remembered petitioner and his siblings being so terrorized by their father‟s cruelty
that they urinated and defecated upon his approach; Chimino would also have
been able to provide information regarding the multigenerational and widespread
alcoholism in the family.” Thus, petitioner asserted the failure of the police, the
trial court, and petitioner‟s own trial counsel to ensure compliance with the Vienna
Convention “was prejudicial to petitioner‟s defense at both guilt and penalty
phases of his trial and requires reversal of his convictions and sentence of death.”
In a subsequent letter, habeas corpus counsel called our attention to the Avena
decision but made no specific argument as to its applicability to this case.
In an order filed on October 20, 2004, we stated, in pertinent part: “The
petition filed on December 13, 2002, is denied on the merits.”
The instant petition was filed on February 14, 2006. The basis of
petitioner‟s renewal of his Vienna Convention claim was “a major event” that had
occurred since the denial of his first petition: “On February 28, 2005, President
Bush determined that the United States would comply with [the] ICJ‟s judgment in
the Avena case by requiring state court review and reconsideration of the effect of
7
the consular rights violations in all of the 51 cases named in the Avena judgment,
including petitioner‟s.” Petitioner argued that the Presidential Memorandum
“preempts inconsistent state law,” under the supremacy clause (U.S. Const., art.
VI, cl. 2), particularly “any state procedural rules.” Petitioner maintained that the
Presidential Memorandum “establishes a „binding federal rule‟ and hence
constitutes the supreme law of the Land. [Citation.] The determination gives
Petitioner the right to enforce the Avena judgment in a proceeding filed in state
court, and requires the state court to adhere to the Avena judgment in any such
proceeding. [¶] Petitioner respectfully requests an evidentiary hearing to
determine the claim herein. After the evidentiary hearing petitioner requests this
court reverse his conviction and order a new trial on grounds that the trial court
and trial counsel prejudicially deprived him [of] his Constitutional Rights.”
Thus, petitioner‟s renewed claim was specifically premised on his theory
that the Presidential Memorandum constituted binding federal law that overrode
any state procedural bar to the renewal of the claim. The exhibits attached to the
petition to establish prejudice were the same exhibits as had been attached to the
first petition, including the declarations of petitioner‟s brother and the Mexican
Consul General; Armenta‟s declaration was not re-submitted. Petitioner made no
new claim of prejudice as a result of violation of the Vienna Convention nor did
he submit any new evidence of prejudice.
We issued an order to show cause why relief should not be granted on
grounds “(1) that this court is bound by the judgment of the International Court of
Justice in Avena and Other Mexican Nationals (Mex. v. U.S.) . . . under the
Supremacy Clause (U.S. Const., art. VI, cl. 2), and/or the Presidential Directive
issued on February 28, 2005 directing the courts of the United States to give effect
to the Avena decision as a matter of comity, and (2) that, pursuant to the Avena
8
decision, this court is required to order an evidentiary hearing addressing whether
petitioner suffered actual prejudice as a result” of the violation of his Vienna
Convention right to consular notification.
In his return, the Attorney General argued that the petition was barred under
the procedural bar of successiveness. (In re Clark (1993) 5 Cal.4th 750, 774.)
The Attorney General maintained that the Presidential Memorandum was not a
mandatory order requiring suspension by state courts of procedural bars with
respect to the Avena litigants or, if it was, it exceeded the President‟s
constitutional authority. The Attorney General argued, further, that petitioner had
failed to demonstrate that he fell into the miscarriage of justice exception for
successive petitions.2 Finally, the Attorney General repeated his arguments that
petitioner had failed to demonstrate any prejudice as a result of any violation of his
Vienna Convention rights.
While the petition was pending, the United States Supreme Court granted
certiorari in the Medellin case. As petitioner subsequently conceded, the grounds
on which we issued our order to show cause in this case were “essentially
identical to the questions presented in” Medellin. Therefore, on May 23, 2007, we
directed petitioner to serve and file his reply 30 days after the finality of the
Supreme Court‟s decision in that case, and permitted the Attorney General to file a
supplemental return addressing the effect of such decision on this case.
The Supreme Court issued its decision in Medellin on March 25, 2008.
Upon finality, petitioner filed his traverse. Petitioner acknowledged that, in

2
The Attorney General alternatively argued the petition was untimely
because petitioner had waited nearly a year from the issuance of the Presidential
Memorandum to file the instant petition.
9


Medellin, the Supreme Court held “that neither Avena nor the President‟s
Memorandum constitutes directly enforceable federal law that pre-empts state
limitations on the filing of successive habeas petitions.” (Medellin v. Texas,
supra, 552 U.S. at p. ___ [128 S.Ct. 1346, 1353].) Nonetheless, petitioner argued
both that Medellin acknowledged the existence of individually enforceable rights
to consular notification and assistance under the Vienna Convention and that
nothing in the decision “prevents a state court from granting the ICJ remedy of
„review and reconsideration.‟ ” Furthermore, noting that the Mexican government
had, in light of Medellin, affirmed its commitment to the enforcement of Avena,
and the possibility of congressional action, petitioner requested that we stay
proceedings in his case to allow “nonjudicial processes to be pursued.”
In his response, the Attorney General contended that Medellin “directly
supports respondent‟s position that, because . . . Avena and the Presidential
Memorandum do not preempt this State‟s procedural bars and do not qualify as
previously unavailable factual or legal bases, the Court should summarily deny
Martinez‟s petition as procedurally barred.” Petitioner filed a responsive brief in
which, for the first time, he argued that Medellin supported his claim that his
petition was not successive but based on previously unavailable law and facts for
the following reasons: (1) he was entitled to “appropriate accommodations” for
his request for consular notification, e.g., his request for a continuance should have
been granted; (2) Medellin established a three-working-day requirement for United
States authorities to comply with his request for consular notification; and (3) his
showing regarding the assistance that might have been rendered by prompt
consular assistance constituted a prima facie showing entitling him to relief.
10
II. DISCUSSION
A. Habeas Corpus Procedure
A petition for writ of habeas corpus initiates judicial proceedings to
determine the lawfulness of the petitioner‟s confinement. (People v. Romero
(1994) 8 Cal.4th 728, 738.) Because such a petition “seeks to collaterally attack a
presumptively final criminal judgment, the petitioner bears a heavy burden
initially to plead sufficient grounds for relief, and then later to prove them.”
(People v. Duvall (1995) 9 Cal.4th 464, 474.) At the pleading stage, the petition
must state a prima facie case for relief. To that end, the petition “should both
(i) state fully and with particularity the facts on which relief is sought [citations],
as well as (ii) include copies of reasonably available documentary evidence
supporting the claim, including pertinent portions of trial transcripts and affidavits
or declarations.” (Ibid.; see also, e.g., In re Sassounian (1995) 9 Cal.4th 535, 547;
In re Hochberg (1970) 2 Cal.3d 870, 875, fn. 4.)
Next, the petitioner must avoid any procedural bar that would prevent the
court from reaching the merits of the claim. (See People v. Romero, supra, 8
Cal.4th at p. 737; In re Clark, supra, 5 Cal.4th at p. 769, fn. 9; see also Clark,
pp. 764-765, & fn. 3.) “Such rules are necessary both to deter use of the writ to
unjustifiably delay implementation of the law, and to avoid the need to set aside
final judgments when retrial would be difficult or impossible.” (Id. at p. 764.)
In this case, the Attorney General contends that the petition is subject to the
procedural bar of successiveness. “It has long been the rule that absent a change
in the applicable law or the facts, the court will not consider repeated applications
for habeas corpus presenting claims previously rejected. [Citations.] The court
has also refused to consider newly presented grounds for relief which were known
to the petitioner at the time of a prior collateral attack on the judgment.
11
[Citations.] This rule was stated clearly in In re Conner [(1940)] 16 Cal.2d 701,
705: „In this state a defendant is not permitted to try out his contentions piecemeal
by successive proceedings attacking the validity of the judgment against him.‟ ”
(In re Clark, supra, 5 Cal.4th at pp. 767-768.)
This procedural bar is subject to exceptions. For example, “where the
factual basis for a claim was unknown to the petitioner and he had no reason to
believe that the claim might be made, or where the petitioner was unable to
present his claim, the court will continue to consider the merits of the claim if
asserted as promptly as reasonably possible.” (In re Clark, supra, 5 Cal.4th at
p. 775.) Another exception to the general rule that “absent justification for the
failure to present all known claims in a single, timely petition for writ of habeas
corpus, successive and/or untimely petitions will be summarily denied,” is
“petitions which allege facts which, if proven, would establish that a fundamental
miscarriage of justice occurred as a result of the proceedings leading to conviction
and/or sentence.” (Id. at p. 797.)
“[A] „fundamental miscarriage of justice‟ will have occurred in any
proceeding in which it can be demonstrated: (1) that error of constitutional
magnitude led to a trial that was so fundamentally unfair that absent the error no
reasonable judge or jury would have convicted the petitioner; (2) that the
petitioner is actually innocent of the crime or crimes of which the petitioner was
convicted; (3) that the death penalty was imposed by a sentencing authority which
had such a grossly misleading profile of the petitioner before it that absent the trial
error or omission no reasonable judge or jury would have imposed a sentence of
death; (4) that the petitioner was convicted or sentenced under an invalid statute.
These claims will be considered on their merits even though presented for the first
12
time in a successive petition or one in which the delay has not been justified.” (In
re Clark, supra, 5 Cal.4th at pp. 797-798, fns. omitted.)
B. Absent Justification, the Current Petition Is Procedurally Barred
Before we address the status of petitioner‟s current petition, we feel
compelled to point out that this is not a case where petitioner‟s notification claim
has not been considered by this court on its merits. As already noted, petitioner‟s
first habeas corpus petition asserted a violation of his Vienna Convention rights by
police and the trial court. We reviewed and considered that claim, including, of
course, whether petitioner was prejudiced by any violation of his article 36 rights.
Thus, consistent with our own prior decisions, as well as that of the United States
Supreme Court, we assumed for purposes of review that petitioner had
individually enforceable rights under article 36. (People v. Cook (2006) 39
Cal.4th 566, 600; Breard v. Green (1998) 523 U.S. 371, 376-378.)3 Specifically,
we reviewed the declarations of the Mexican Consul General and the two
witnesses whose presence the Mexican consulate would have obtained during his
trial, Leonardo Armenta and Maximino Aviles, to determine whether petitioner
was prejudiced either because he was denied the assistance the Mexican
government could have provided him or denied the presence of these witnesses at
his trial. In so doing, we effectively complied with the ICJ‟s directive, discussed
in greater detail below, that the cases of the 51 Mexican nationals at issue in Avena
be reviewed and reconsidered in light of the asserted violation of their article 36
right to consular notification to determine whether, as a result of that violation,
those individuals suffered “actual prejudice.” (Avena, supra, 2004 I.C.J. at p. 59,

3
We continue to adhere to this approach, assuming, without deciding, that
article 36 confers individual rights on foreign nationals.
13


¶ 121.) We denied the petition on its merits. Thus, this court has already
considered petitioner‟s article 36 claim without reference to any procedural bar.
As petitioner‟s counsel conceded at argument, the current petition presents
no new evidentiary showing that he suffered actual prejudice as a result of the
asserted violation of his article 36 rights. Indeed, his current petition withdraws
the declaration of Armenta that was part of his first petition, so there is even less
of a factual showing in support of his claim of prejudice. Rather, petitioner
maintains that the Avena decision and the Presidential Memorandum constituted a
change in the law, unavailable to him at the time he filed his first petition, that
now requires us to review and reconsider his conviction and sentence,
notwithstanding any state procedural bar. In other words, unlike every other
habeas corpus petitioner, even those advancing substantial constitutional claims,
petitioner maintains that he is entitled to a second round of review of a claim we
have already reviewed and rejected on its merits even though the claim is based on
essentially the same factual showing previously advanced because, according to
petitioner‟s reading of Avena and the Presidential Memorandum, procedural
defaults cannot be applied to the cases of the 51 Mexican nationals named in
Avena.
We would be dubious about this reading of Avena even in the absence of
the Supreme Court‟s decision in Medellin, supra, 552 U.S. ___ [128 S.Ct. 1346].
In any event, Medellin has eviscerated petitioner‟s claim. The effect of Medellin
is to restore the status quo ante that existed before Avena and the Presidential
Memorandum, under which a state may reject a habeas corpus petition raising a
Vienna Convention claim as procedurally barred.
14

C. The Basis of Petitioner’s Justification for Filing the Instant Petition

Was Eviscerated by Medellin
1. Avena and the Presidential Memorandum
The United States is a signatory to the Vienna Convention, 21 U.S.T. 77,
and its Optional Protocol to the Vienna Convention on Consular Relations
Concerning the Compulsory Settlement of Disputes, April 24, 1963, 21 U.S.T.
325, T.I.A.S. No. 6820 (Optional Protocol).
Article 36 of the Vienna Convention provides: “1. With a view to
facilitating the exercise of consular functions relating to nationals of the sending
State: [¶] (a) consular officers shall be free to communicate with nationals of the
sending State and to have access to them. Nationals of the sending State shall
have the same freedom with respect to communication with and access to consular
officers 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 to custody pending trial or is detained in any other manner. 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; [¶] (c) consular officers shall have the right to visit a
national of the sending State who is in prison, custody or detention, to converse
and correspond with him and to arrange for his legal representation. They shall
also have the right to visit any national of the sending State who is in prison,
custody or detention in their district in pursuance of a judgment. Nevertheless,
consular officers shall refrain from taking action on behalf of a national who is in
prison, custody or detention if he expressly opposes such action. [¶] 2. The rights
referred to in paragraph 1 of this Article shall be exercised in conformity with the
15
laws and regulations of the receiving State, subject to the proviso, however, that
the said laws and regulations must enable full effect to be given to the purposes for
which the rights accorded under the Article are intended.” (Vienna Convention,
art. 36, 21 U.S.T. at pp. 100-101.)4
The Optional Protocol provides that disputes “arising out of the
interpretation or application of the [Vienna] Convention shall lie within the
compulsory jurisdiction of the International Court of Justice.” (Optional Protocol,
art. 1, 21 U.S.T. at p. 326.)5
Petitioner was among the 54 Mexican nationals convicted of a capital
offense on behalf of whom Mexico instituted proceedings in the ICJ, in which it
asked the ICJ to find that the United States had violated article 36. (Avena, supra,
2004 I.C.J. at pp. 19-20, ¶ 12.) The ICJ concluded that in the cases of 51 of the
Mexican nationals the United States had breached its obligation under article 36
“to inform detained Mexican nationals of their rights” under that article and “to
notify the Mexican consular post of the [their] detention,” as a result of which the
United States further violated its article 36 obligation to permit consular officers

4
In the terminology of article 36, the “sending State” is the place of origin of
the arrested or detained national while the “receiving State” is the place where he
or she has been arrested or detained. In this case, Mexico is the sending state and
the United States is the receiving state.
5
The basic source of the jurisdiction of the ICJ is found in article 94(1) of
the United Nations Charter, which states that “[e]ach member of the United
Nations undertakes to comply with the decision of the International Court of
Justice in any case to which it is a party” (U.N. Charter, June 26, 1945, art. 94(1),
59 Stat. 1031, 1051) and article 36(1) of the Statute of the International Court of
Justice, which states that “[t]he jurisdiction of the Court comprises all cases which
the parties refer to it and all matters specially provided for in the Charter of the
United Nations or in treaties and conventions in force.” (Stat. of the Internat. Ct.
J., June 26, 1945, art. 36(1), 59 Stat. 1031, 1060.)
16


“to communicate with and have access to their nationals, . . . to visit their detained
nationals” and “to enable Mexican consular officers to arrange for legal
representation of their nationals.” (Avena, at pp. 54-55, ¶ 106(1)-(4).)
Having concluded that the United States breached its obligations under
article 36 as to the 51 Mexican nationals, including petitioner, the ICJ addressed
“what legal remedies should be considered for the breach.” (Avena, supra, 2004
I.C.J. at p. 58, ¶ 115.) The ICJ rejected Mexico‟s request for annulment of the
convictions and sentences. (Id. at p. 60, ¶ 123.) Instead, the ICJ prescribed, as a
remedy, “review and reconsideration of these nationals‟ cases by the United States
courts . . . with a view to ascertaining whether in each case the violation of Article
36 committed by the competent authorities caused actual prejudice to the
petitioner in the process of administration of criminal justice.” (Id. at p. 60,
¶ 121.) The ICJ explained further: “The question of whether the violations of
Article 36, paragraph 1, are to be regarded as having, in the causal sequence of
events, ultimately led to convictions and severe penalties is an integral part of
criminal proceedings before the courts of the United States and is for them to
determine in the process of review and reconsideration. In so doing, it is for the
courts of the United States to examine the facts, and in particular the prejudice and
its causes, taking account of the violation of the rights set forth in the
Convention.” (Id. at p. 48, ¶ 122.)
The ICJ concluded further, however, that “this freedom in the choice of
means for such review and reconsideration is not without qualification.” (Avena,
supra, 2004 I.C.J. at p. 62, ¶ 131.) The ICJ explained that the required review and
consideration must take place “within the overall judicial proceedings relating to
the individual petitioner concerned,” and that procedural default doctrines could
not bar the required review and reconsideration. (Id. at p. 66, ¶ 141.) Moreover,
17
the ICJ required that the violation of article 36 be reviewed independently of due
process provisions of the United States Constitution. (Id. at p. 63, ¶¶ 133-134.)
The ICJ explained: “The rights guaranteed under the Vienna Convention are
treaty rights which the United States had undertaken to comply with in relation to
the individual concerned, irrespective of the due process rights under United States
constitutional law. In this regard, the Court would point out that what is crucial in
the review and reconsideration process is the existence of a procedure which
guarantees that full weight is given to the violation of the rights set forth in the
Vienna Convention, whatever may be the actual outcome of such review and
reconsideration.” (Id. at p. 65, ¶ 139.)6
Following the Avena decision, another of the Mexican nationals involved in
that proceeding, Jose Ernesto Medellin, brought a petition for writ of habeas
corpus in the district court for the Southern District of Texas. In upholding the
denial of his petition, the Fifth Circuit Court of Appeals rejected Medellin‟s
reliance on Avena as a basis for his claim that his Vienna Convention rights had
been violated. (Medellin v. Dretke (5th Cir. 2004) 371 F.3d 270, 279-280.) The
United States Supreme Court granted certiorari to consider whether federal courts

6
In devising this remedy, the ICJ relied upon an earlier decision involving
Germany and the United States that Germany instituted against the United States
alleging violation of article 36 as to two brothers, both German nationals,
convicted of capital offenses in Arizona. (LeGrand (F.R.G. v. U.S.) 2001 I.C.J.
466 (June 27). In LeGrand, the ICJ held that article 36 creates individual rights to
consular notification and prohibits applying procedural default rules to a challenge
brought under article 36. (LeGrand, supra, 2001 I.C.J. at p. 497, ¶ 90.) The ICJ‟s
decision did not benefit the LeGrand brothers, however, as they were executed
before the ICJ issued its decision. Therefore, the ICJ also held that in any future
cases in which the United States was found to have violated article 36, the United
States must allow review and reconsideration of the violated national‟s conviction
and sentence. (LeGrand, supra, 2001 I.C.J. at pp. 513-514, ¶ 125.)
18


were bound by the Avena judgment without regard to procedural default and
whether federal courts should give effect to that judgment, as a matter of judicial
comity and uniform treaty interpretation. (Medellin v. Dretke (2005) 544 U.S.
660, 661 (per curiam).
However, on February 28, 2005, former President George W. Bush issued a
memorandum that stated in part: “I have determined, pursuant to the authority
vested in me as President by the Constitution and the laws of the United States of
America, that the United States will discharge its international obligations under
the decision of the International Court of Justice in the Case Concerning Avena
and Other Mexican Nationals (Mexico v. United States of America) (Avena), 2004
ICJ 128 (Mar. 31), by having State courts give effect to the decision in accordance
with general principles of comity in cases filed by the 51 Mexican nationals
addressed in that decision.”7 Medellin then filed an application for a writ of
habeas corpus in the Texas Court of Criminal Appeals. Observing that the “state-
court proceeding may provide Medellin with the very reconsideration of his
Vienna Convention claim that he now seeks in the present proceeding,” the high
court dismissed certiorari as improvidently granted. (Medellin v. Dretke, supra,
544 U.S. 660, 662 (per curiam).)
2. Medellin
The Texas Court of Criminal Appeals dismissed Medellin‟s habeas corpus
petition — his second — because in its view neither the Avena decision nor the
Presidential Memorandum constituted binding federal law that could displace a

7
Following the issuance of the Presidential Memorandum, the United States
withdrew from the Optional Protocol. (See Medellin v. Dretke, supra, 544 U.S. at
p. 682 (dis. opn. of O‟Connor, J.).)
19


state procedural limitation on successive petitions. (Ex parte Medellin
(Tex.Crim.App. 2006) 223 S.W.3d 315, 352.) The Supreme Court again granted
certiorari and affirmed the judgment of the Texas court. (Medellin v. Texas,
supra, 552 U.S. ___ [128 S.Ct. at p. 1353].) The Supreme Court specifically
rejected Medellin‟s argument that either the Avena decision and/or the Presidential
Memorandum “is a binding federal rule of decision that pre-empts contrary state
limitations on successive habeas petitions.” (Id. at p. 1356, italics added.)
With respect to Medellin‟s claim that Avena itself constituted binding
federal law, the court examined the treaties through which the United States had
submitted to the jurisdiction of the ICJ and concluded that “none of these treaty
sources” —the Optional Protocol, the United Nations Charter, and the ICJ statute
— were self-executing, and, therefore did not create “binding federal law in the
absence of implementing legislation, and because it is uncontested that no such
legislation exists, we conclude that the Avena judgment is not automatically
binding domestic law.” (Medellin v. Texas, supra, 552 U.S. at p.___ [128 S.Ct. at
p. 1357].)8
Nor was the court persuaded that the President, acting unilaterally through
the Presidential Memorandum, could create such binding domestic law. The court
cited “Justice Jackson‟s familiar tripartite scheme” for “evaluating executive
action” in the area of foreign policy decisions. “First, „[w]hen the President acts
pursuant to an express or implied authorization of Congress, his authority is at its

8
The court explained that “[w]hat we mean by „self-executing‟ is that the
treaty has automatic domestic effect as federal law upon ratification. Conversely,
a „non-self-executing‟ treaty does not by itself give rise to domestically
enforceable federal law. Whether such a treaty has domestic effect depends upon
implementing legislation passed by Congress.” (Medellin v. Texas, supra, 552
U.S. at p.___, fn. 2 [128 S.Ct. at p. 1356, fn. 2].)
20


maximum, for it includes all that he possesses in his own right plus all that
Congress can delegate.‟ [Citation.] Second, „[w]hen the President acts in absence
of either a congressional grant or denial of authority, he can only rely upon his
own independent powers, but there is a zone of twilight in which he and Congress
may have concurrent authority, or in which its distribution is uncertain.‟
[Citation.] . . . Finally, „[w]hen the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest ebb,‟ and the
Court can sustain his actions „only by disabling the Congress from acting upon the
subject.‟ [Citation.]” (Medellin v. Texas, supra, 552 U.S. at p.___ [128 S.Ct. at
p. 1368].) Here, the non-self-executing nature of the treaty sources of ICJ
jurisdiction “not only refutes the notion that the ratifying parties vested the
President with the authority to unilaterally make treaty obligations binding on
domestic courts, but also implicitly prohibits him from doing so. When the
President asserts the power to „enforce‟ a non-self-executing treaty by unilaterally
creating domestic law, he acts in conflict with the implicit understanding of the
ratifying Senate. His assertion of authority, insofar as it is based on the pertinent
non-self-executing treaties, is therefore within Justice Jackson‟s third category, not
the first or even the second.” (Id. at p. ___ [128 S.Ct. at p. 1369].)
Finally, the court rejected the alternative argument advanced by the
President that the memorandum was a valid exercise of his authority to resolve
claims disputes with other nations. The court found inapposite the cases cited by
the government that involved the making of executive agreements to settle civil
claims between American citizens and foreign governments or nations. The court
noted, “the Government has not identified a single instance in which the President
has attempted (or Congress has acquiesced in) a Presidential directive issued to
state courts, much less one that reaches deep into the heart of the State‟s police
21
powers and compels state courts to reopen final criminal judgments and set aside
neutrally applicable state laws. [Citation.] The Executive‟s narrow and strictly
limited authority to settle international claims disputes pursuant to an executive
agreement cannot stretch so far as to support the current Presidential
Memorandum.” (Medellin v. Texas, supra, 552 U.S. at p.___ [128 S.Ct. at
p. 1372].)
3. Application of Medellin to This Petition
Insofar as petitioner seeks to justify his successive petition on the grounds
that Avena and/or the Presidential Memorandum constitute binding federal law
that overrides state procedural defaults, Medellin is a complete and negative
response to his argument. Nonetheless, petitioner purports to discern within the
Medellin decision elements that “support a finding that Petitioner‟s present
petition is based on previously unavailable facts and law.”
First, petitioner refers to the court‟s discussion in Medellin of its earlier
Vienna Convention claim decision, Sanchez-Llamas v. Oregon (2006) 548 U.S.
331 for the proposition “that a petitioner may request „appropriate
accommodations‟ from the trial court to secure „the benefits of consular
assistance.‟ ” From this language, petitioner argues he was deprived of such
accommodation when the trial court denied his request for a continuance at trial to
contact the Mexican consulate. Petitioner is wrong.
Sanchez-Llamas consolidated the cases of two foreign nationals, Moises
Sanchez-Llamas, a Mexican, and Mario A. Bustillo, a Honduran, both of whom
sought review of their convictions — Sanchez-Llamas for attempted murder,
among other counts, and Bustillo for first degree murder — based on the asserted
failure of law enforcement authorities to comply with article 36. Sanchez-Llamas
sought to suppress incriminating statements he had made to the police,
22
notwithstanding that he had waived his rights under Miranda v. Arizona (1966)
384 U.S. 436, as a penalty for violation of his article 36 rights. Bustillo attempted
to raise his article 36 claim for the first time in his petition for habeas corpus but
the claim was dismissed as procedurally barred because he had failed to raise it at
trial or on direct appeal. (Sanchez-Llamas v. Oregon, supra, 548 U.S. at pp. 339-
342.) Neither man was one of the 51 individuals named in the Avena decision.
The issues in Sanchez-Llamas were identified as “(1) whether Article 36 of
the Vienna Convention grants rights that may be invoked by individuals in a
judicial proceeding; (2) whether suppression of evidence is a proper remedy for
violation of Article 36; and (3) whether an Article 36 claim may be deemed
forfeited under state procedural rules because a defendant failed to raise the claim
at trial.” (Sanchez-Llamas v. Oregon, supra, 548 U.S. at p. 342.) In order to
respond to petitioners‟ claims, the court answered the first question by assuming,
without deciding, that such rights could be individually invoked (id. at p. 343);
held, as to the second question, that neither the Vienna Convention nor the court‟s
own precedents supported application of the exclusionary rule as a remedy for a
violation of article 36 rights (548 U.S. at pp. 343-350); and, as to the third
question, in an answer that foreshadowed its decision in Medellin, held that state
procedural defaults did apply to such claim. (548 U.S. at p. 360.)
Petitioner contends that certain language in Sanchez-Llamas was
subsequently cited by the Supreme Court in Medellin as a basis to create
procedural rules requiring states to accommodate defendants who may be foreign
nationals with respect to their Vienna Convention rights. But nowhere in Sanchez-
Llamas itself does the court address this issue, nor do the court‟s references to
Sanchez-Llamas in Medellin even advert to this issue. To the contrary, the pages
in Medellin to which petitioner refers us for their discussion of Sanchez-Llamas
23
simply reinforce Medellin‟s conclusion that ICJ decisions are not binding federal
law and do not override state procedural rules. (Medellin v. Texas, supra, 552
U.S. at pp.___-___ [128 S.Ct. at pp. 1361, fn. 8, 1364, 1367].) We are at a loss to
perceive in either decision support for petitioner‟s claim that the trial court in this
case was required to have granted his request for a continuance to contact the
Mexican consulate. Moreover, this is one of the same claims petitioner raised in
his first habeas corpus petition. He provides no justification for revisiting our
denial of that petition on this ground.
Second, petitioner asserts that Medellin now establishes a three-day rule
within which notice to a foreign national of his consular rights must be given to
avoid violating the Vienna Convention. Again, petitioner misconstrues the
language.
The Supreme Court noted that, in denying Medellin‟s first application for
state postconviction relief, the Texas trial court ruled that the claim was both
procedurally barred because Medellin had not raised it at trial and also without
merit “finding that Medellin had „fail[ed] to show that any non-notification of the
Mexican authorities impacted on the validity of his conviction or punishment.‟
[Citation].” (Medellin v. Texas, supra, 552 U.S. at p.___ [128 S.Ct. at pp. 1354-
1355].) In a footnote explaining the trial court‟s ruling, the Supreme Court
observed that the ICJ in Avena had concluded that the Vienna Convention‟s
requirement of consular notification “ „without delay‟ ” is satisfied “where notice
is provided within three working days,” but that in Medellin‟s case he had
confessed within three hours of his arrest, “before there could be a violation of his
Vienna Convention right to consulate notification.” (Medellin v. Texas, supra, 52
U.S. at p.___ [128 S.Ct. at p. 1355, fn. 1].)
24
Thus, the Supreme Court did not approve or disapprove the ICJ‟s three-day
rule — indeed, the court‟s reference to this rule occurred in that portion of its
decision describing the procedural history of Medellin‟s case, not within its
analysis of his claims. Moreover, the purpose of this reference was simply to
explain the basis of the state trial court‟s denial of Medellin‟s application for
postconviction relief, not to announce any procedural rule with respect to when
consular notification must be made.
Finally, it is clear that in this case petitioner was aware of his right of
consular notification by the time of his trial — when he requested a continuance to
consult with the Mexican consul. He failed to demonstrate in his first petition and
he fails to demonstrate here that he suffered any prejudice because he was not
notified of those rights at the time of his arrest.
Third, petitioner contends: “Medellin establishes for the first time that the
requirements of Breard v. Greene[, supra, 523 U.S. 371] apply to cases addressed
under Avena. That finding necessarily includes Breard‟s recognition that the
denial of an evidentiary hearing „prevents [petitioner] from establishing that the
violation of his Vienna Convention rights prejudiced him.‟ ” In other words,
petitioner maintains that Breard requires an evidentiary hearing to resolve the
merits of a Vienna Convention claim, and that Medellin adopted this holding with
respect to the 51 individuals subject to the Avena decision.
Petitioner fails to provide a citation to the page in Medellin where,
according to him, the Supreme Court adopted Breard‟s requirement of an
evidentiary hearing. Our review of Medellin‟s several citations to Breard fails to
support his claim. (See Medellin v. Texas, supra, 552 U.S. ____ [128 S.Ct. at
pp. 1361, fn. 9, 1363, 1370, fn. 14].) In any event, the premise of petitioner‟s
argument — that Breard requires such hearings — is utterly inaccurate. Petitioner
25
cites a portion of Breard that concluded a federal habeas corpus petition was
barred by the Antiterrorism and Effective Death Penalty Act‟s provision that an
evidentiary hearing shall not be provided with respect to a federal habeas corpus
petition based upon a violation of treaties of the United States, if the petitioner
“ „has failed to develop the factual basis of [the] claim in State court
proceedings.‟ ” (Breard v. Green, supra, 523 U.S. at p. 376.) Breard concluded
that this provision “prevents Breard from establishing that the violation of his
Vienna Convention rights prejudiced him. Without a hearing, Breard cannot
establish how the Consul would have advised him, how the advice of his attorneys
differed from the advice the Consul would have provided, and what factors he
considered in electing to reject the plea bargain that the State offered him.” (Ibid.)
Accordingly, Breard held only that the petitioner could not prevail on his
habeas corpus claim because federal law precluded an evidentiary hearing when
the petitioner had failed to develop his claim in state court. To the extent it is
relevant to this case it reinforces the Supreme Court‟s subsequent ruling in
Medellin that procedural defaults apply to Vienna Convention claims. It certainly
does not stand for the proposition for which petitioner advances it — that
determination of the merits of such claims requires an evidentiary hearing.
Finally, petitioner argues that he is not required to establish “absolute proof
of a different outcome” but only a prima facie showing of prejudice. But we
determined, in reviewing his first habeas corpus petition, that he had not done so
when we denied it on the merits. Again, however, petitioner‟s factual showing of
entitlement to relief has not significantly changed from his original petition to this
one.
Next, seizing upon the possibility that either the United States Congress
might yet authorize compliance with the Avena decision or the Mexican
26
government may continue to press its case through diplomatic channels, petitioner
urges us to stay proceedings in this case to see whether either of these efforts bears
fruit.9 Although he initially requests a 90-day stay, there is, of course, no
guarantee that any action will have taken place at either the legislative or
diplomatic level and he would undoubtedly request a further stay once the initial
90-day stay has expired. Such a course of action would ill serve “the importance
of finality of judgments [citation], and the interest of the state in the prompt
implementation of its laws.” (In re Clark, supra, 5 Cal.4th at p. 764.) We decline
to issue such a stay at this juncture.10
Finally, we observe that petitioner makes no attempt to bring himself within
the miscarriage of justice exception to successiveness as outlined in Clark. (In re
Clark, supra, 5 Cal.4th at pp. 797-798.)

9
Petitioner points to the Avena Case Implementation Act of 2008, which
was introduced in the last session of the Congress on July 14, 2008, and referred to
the House Committee on the Judiciary on the same day; no further action was
taken on the bill. (See Avena Case Implementation Act of 2008, H.R. No. 6481,
110th Cong., 2d Sess. (2008) (referred to committee July 14, 2008). He also
points to a press statement by the United States Ambassador to Mexico regarding
discussions about the implementation of Avena but apparently did not bear fruit
either and, with the change in presidential administrations, it is unclear when or
whether these discussions will continue.
10
We note in this connection that the Supreme Court itself denied a request
for a stay of execution in the Medellin case advanced on essentially the same
grounds as petitioner does here. (Medellin v. Texas (Aug. 5, 2008, No. 06-984)
554 U.S. ___ [129 S.Ct. 360). Furthermore, the ICJ has recently rejected
Mexico‟s request for an interpretation of Avena sparked by Mexico‟s displeasure
at Medellin‟s execution and its disagreement with the Supreme Court‟s Medellin
decision. (See Request for Interpretation of the Judgment of 31 March 2004 in the
Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.)
2009
I.C.J. ___ (Judgment of Jan. 19).)
27


DISPOSITION
The order to show cause is discharged and the petition for writ of habeas
corpus is denied.
MORENO, J.
WE CONCUR: GEORGE, C. J.

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
28



CONCURRING OPINION BY KENNARD, J.
I concur fully in the majority opinion. I write separately to comment on
one aspect of the procedural bar of successiveness. As the majority opinion
explains, the successiveness bar is subject to exceptions, one of which applies
when a petition alleges facts that, if proved, would establish that a fundamental
miscarriage of justice occurred. (Maj. opn., ante, at p. 12.) In my view, this court
has adopted an overly restrictive definition of that exception, under which the
petitioner must show actual innocence or a constitutional error without which “no
reasonable judge or jury” would have convicted the petitioner or returned a death
verdict. (In re Clark (1993) 5 Cal.4th 750, 797, fn. omitted.) For the reasons I
have previously stated in a separate opinion, “I would adopt instead the test used
by the Pennsylvania courts” under which a claim that could have been presented in
an earlier petition will be considered on its merits “if the petitioner shows either
factual innocence or procedural unfairness of such gravity that „no civilized
society‟ can tolerate it.” (In re Clark, supra, at p. 803 (conc. & dis. opn. of
Kennard, J.).)
Here, however, it does not matter which definition of “fundamental
miscarriage of justice” one applies, because petitioner has not alleged facts that, if
1


proved, would establish a fundamental miscarriage of justice under either
definition.
KENNARD, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Martinez
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S141480
Date Filed: June 29, 2009
__________________________________________________________________________________

Court:


County:
Judge:


__________________________________________________________________________________

Attorneys for Appellant:

Chet L. Taylor and Sandra L. Babcock for Petitioner Omar Fuentes Martinez.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette,
Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Ivy
Fitzpatrick, Deputy Attorneys General, for Respondent State of California.


1

Counsel who argued in Supreme Court (not intended for publication with opinion):

Chet L. Taylor
3250 Wilshire Boulevard, Suite 708
Los Angeles, CA 90010
(213) 480-6226

Sandra L. Babcock
Bluhm Legal Clinic
Northwestern Law School
357 E. Chicago Avenue
Chicago, IL 60611
(312) 503-0114

Holly D. Wilkens
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2297
2


Original proceeding. In this case, which is related to the automatic appeal in People v. Martinez (2003) 31 Cal.4th 673, the court issued an order to show cause on petitioner's claims for relief under Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 06/29/200946 Cal. 4th 945, 209 P.3d 908, 95 Cal. Rptr. 3d 570S141480Habeas (AA Post-Judgment)closed; remittitur issued

PEOPLE v. MARTINEZ (OMAR F.) (S032832)
MARTINEZ (OMAR) ON H.C. (S112103)


Parties
1Martinez, Omar Fuentes (Petitioner)
San Quentin State Prison
Represented by Sandra L. Babcock
Northwestern Law School
Bluhm Legal Clinic
357 E. Chicago Avenue
Chicago, IL

2Martinez, Omar Fuentes (Petitioner)
San Quentin State Prison
Represented by Chet L. Taylor
Attorney at Law
3250 Wilshire Boulevard, Suite 708
Los Angeles, CA

3Department of Corrections & Rehabilitation (Non-Title Respondent)
Represented by Attorney General - San Diego Office
Holly D. Wilkens, Supervising Deputy Attorney General
P.O. Box 85266
San Diego, CA


Opinion Authors
OpinionJustice Carlos R. Moreno
ConcurJustice Joyce L. Kennard

Disposition
Jun 29 2009Opinion: Habeas Corpus denied

Dockets
Feb 24 2006Petition for writ of habeas corpus filed (AA)
by attorney Chet L. Taylor. (1 volume - 20 pp.)
Feb 24 2006Exhibit(s) filed (AA)
in support of petition for writ of habeas corups. (1 volume)
Mar 9 2006Informal response requested
(Rule 60); due April 10, 2006. Any reply due within 30 days of service and filing response.
Mar 23 2006Received:
CD containing electronic copy of exhibits in support of petition for writ of habeas corpus.
Apr 10 2006Informal response filed (AA)
(7,247 words; 26 pp.)
May 15 2006Reply to informal response filed (AA)
by attorney Chet Taylor. (17 pp. - excluding attached exhibits)
Feb 14 2007Order to show cause issued
The Director of the Department of Corrections and Rehabilitation is ordered to show cause in this court, when the matter is placed on calendar, why the relief prayed for should not be granted on grounds that (1) this court is bound by the judgment of the International Court of Justice in Avena and Other Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. 1 (Mar. 31) either under the Supremacy Clause (U.S. Const., art. VI, cl. 2), and/or in light of the Presidential Directive issued on February 28, 2005 directing the courts of the United States to give effect to the Avena decision under general principles of comity, and, pursuant to that decision, to (2) grant review and reconsideration of petitioner's conviction and sentence, by way of an evidentiary hearing, on whether petitioner suffered actual prejudice as a result of the violation of his rights under Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, as alleged in the petition for writ of habeas corpus filed April 27, 2005. The return shall be filed on or before March 16, 2007. (votes: George, C.J., Kennard, Werdegar and Moreno, JJ.)
Feb 15 2007Order filed
The order filed on February 14, 2007, issuing an order to show cause is amended to read, in its entirety; "The Director of the Department of Corrections and Rehabilitation is ordered to show cause in this court, when the matter is placed on calendar, why the relief prayed for should not be granted on grounds (1) that this court is bound by the judgment of the International Court of Justice in Avena and Other Mexican Nationals (Mex. v. U.S.) 2004 I.C.J. 1 (Mar. 31) under the Supremacy Clause (U.S. Const., art. VI, cl. 2), and/or the Presidential Directive issued on February 28, 2005 directing the courts of the United States to give effect to the Avena decision as a matter of comity, and (2) that, pursuant to the Avena decision, this court is required to order an evidentiary hearing addressing whether petitioner suffered actual prejudice as a result of the violation of his rights under Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77. The return shall be filed on or before March 16, 2007."
Mar 14 2007Request for extension of time filed
to file respondent's written return. (1st request)
Mar 19 2007Extension of time granted
to April 2, 2007 to file the return to the order to show cause. Extension is granted based upon Deputy Attorney General Ivy B. Fitzpatrick's representation that she anticipates filing that brief by April 2, 2007. After that date, no further extension will be granted.
Apr 2 2007Written return filed
by respondent. (52 pp. - excluding attached 3 pp. exhibit)
May 2 2007Request for extension of time filed
to file reply to return to order to show cause. (1st request)
May 23 2007Order filed
"Petitioner's First Application for Extension of Time to File Petitioner's Reply/Traverse to Respondent's Return," filed on May 2, 2007, is granted as follows: Petitioner's reply is to be served and filed 30 days after the finality of the United States Supreme Court's decision in Medellin v. Texas, 06-984. Respondent will have 30 days after the filing of petitioner's reply to serve and file a supplemental return addressing the effect of the Medellin decision on this case.
Apr 28 2008Note:
mandate issued this date by the U.S.S.C. in Medellin v. Texas.
May 27 2008Reply to return filed
by appellant. (18 pp. excluding exhibits)
Jun 18 2008Supplemental briefing ordered
The court requests the Attorney General to file a supplemental brief directed to the following question: What is the impact of Medellin v. Texas (2008) __ U.S. ___ (128 S.Ct. 1346 [170 L.Ed. 2d 190]) on petitioner's claim that violation of article 36 of the Vienna Convention entitles him to habeas corpus relief? The Attorney General's letter brief must be filed on or before July 20, 2008. Petitioner may then file an additional letter brief in response on or before July 31, 2008. No further extensions of time for the filing of these briefs are contemplated by the court. George, C.J., was absent and did not participate. Werdegar and Corrigan, JJ., were absent and did not participate.
Jul 18 2008Filed:
by respondent, Letter Brief dated July 16, 2008, pursuant to court's order of June 18, 2008.
Jul 30 2008Filed:
petitioner's letter brief, dated July 30, 2008, response to respondent's letter brief.
Jan 26 2009Oral argument letter sent
advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 2, 2009, in San Francisco.
Feb 13 2009Received:
Letter from Attorney at Law, Chet L. Taylor, dated February 4, 2009, advising the court that he will be unavailable for oral argument the week of April 6, 2009.
Feb 20 2009Letter sent to:
attorney Taylor advising that the case will be scheduled for oral argument the week of May 4, 2009, in San Francisco.
Apr 1 2009Case ordered on calendar
to be argued Tuesday, May 5, 2009, at 1:30 p.m., in San Francisco
Apr 13 2009Filed:
Letter from Chet L. Taylor, counsel for petitioner Martinez, requesting to split oral argument time with co-counsel Sandra L. Babcock. (Filed in conjunction with "Notice of Appearance For Oral Argument By Counsel" on this date.)
Apr 13 2009Filed:
petitioner's "Notice of Appearance for Oral Argument by Counsel Licensed in Another State But Not Licensed to Practice in California Pursuant to California Rule of Court 9.40(g)." (Note: attorney Sandra L. Babcock to appear as counsel for petitioner at oral argument with attorney Chet Taylor. Ms. Babcock is an Associate Clinical Professor and Clinical Director of the Center for International Human Rights at Northwestern Law School.)
Apr 14 2009Received:
appearance sheet from Supervising Deputy Attorney General Holly Wilkens, indicating 30 minutes for oral argument for respondent.
Apr 15 2009Order filed
Petitioner's "Notice of Appearance for Oral Argument by Counsel Licensed in Another State But Not Licensed to Practice in California Pursuant to California Rule of Court 9.40(g)" was filed on April 13, 2009. The court deems the document to be an application under rule 9.40(g) for permission for an attorney licensed in another jurisdiction to participate in the argument in this case based on the attorney's special expertise in the matter before the court. The application is granted.
Apr 16 2009Order filed
The request of counsel for petitioner in the above-referenced cause to allow two counsel to argue on behalf of petitioner at oral argument is hereby granted. The request of petitioner to allocate to counsel Chet L. Taylor 15 minutes and cocounsel Sandra L. Babcock 15 minutes of petitioner's 30-minute allotted time for oral argument is granted.
Apr 30 2009Filed:
respondent's focus issues letter, dated April 29, 2009.
Apr 30 2009Filed:
respondent's supplemental declaration of service for focus issues letter, dated April 29, 2009.
May 5 2009Cause argued and submitted
Jun 26 2009Notice of forthcoming opinion posted
Jun 29 2009Opinion filed: Order to show cause discharged; habeas corpus denied
Majority Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. Concurring Opinion by Kennard, J.
Jul 30 2009Letter sent to counsel: opinion now final

Briefs
Apr 2 2007Written return filed
by respondent. (52 pp. - excluding attached 3 pp. exhibit)
May 27 2008Reply to return filed
by appellant. (18 pp. excluding exhibits)
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Nov 11, 2009
Annotated by Elizabeth Balassone

Facts:
Petitioner was sentenced to death after being convicted of the 1988 murder of Victor Castillo in Riverside County. On December 2002, Petitioner filed his first petition for writ of habeus corpus, asserting that law enforcement authorities violated his right to consular notification under Article 36 of the Vienna Convention. On October 20, 2004 the California Supreme Court denied the petition on its merits. On February 14, 2006 the current petition was filed by Petitioner based on (1) the decision in Avena and Other Mexican Nationals (2004 I.C.J. 12) holding that the United States had violated the Vienna Convention rights of Mexican nationals and (2) the Presidential Memorandum issued by President George W. Bush on February 28, 2005 directing state courts to give effect to the Avena decision by requiring state court review and reconsideration of the effect of consular right violations.

Held:
1) Petitioner’s current petition is procedurally barred as successive.
2) Insofar as petitioner seeks to justify his successive petition on the grounds that the Avena decision and/or the Presidential Memorandum constitute binding federal law that overrides state procedural defaults, the United States Supreme Court’s decision in Medellin v. Texas (128 S.Ct. 1346) eviscerates his claims.
3) Petitioner’s request to stay proceedings, on the possibility that either the United States Congress might yet authorize compliance with the Avena decision or the Mexican government may continue to press its case, is declined.

Analysis:
1) Petitioner must avoid any procedural bar that would prevent the court from reaching the merits of the claim. Absent a change in the applicable law or the facts, the court will not consider repeated applications for habeus corpus presenting claims previously rejected. This procedural bar of successiveness is subject to an exception when “petitions which allege facts which, if proven, would establish that a fundamental miscarriage of justice occurred as a result of the proceedings leading to conviction and/or sentence.” Here, the current petition presents no new evidentiary showing that Petitioner suffered actual prejudice as a result of the asserted violation of his Article 36 rights. It is clear that Petitioner was aware of his right of consular notification by the time of his trial, when he requested a continuance to consult with the Mexican consul. In both his first and current petitions, Petitioner has failed to demonstrate that he suffered any prejudice because he was not notified of those rights at the time of his arrest.
2) On March 25, 2008 the United States Supreme Court held in Medellin that neither the Avena decision nor the Presidential Memorandum created binding federal law that would preempt state procedural limitations on the filing of successive habeus corpus petitions. The effect of Medellin is to restore the status quo ante that existed before the Avena decision and the Presidential Memorandum. In light of Medellin, Petitioner is precluded from renewing his Vienna Convention claim because he previously raised the issue and this court denied relief on its merits.
3) There is no guarantee that any action will have taken place at either level during the 90-day stay, after which Petitioner would undoubtedly request a further stay. Such a course of action would “ill serve” the importance of finality of judgments and the interest of the state in prompt implementation of its laws.

Conclusion:
Petition for writ of habeus corpus is denied.

Concur (Kennard):
The majority has adopted an overly restrictive definition of the exception to the procedural bar of successiveness. The test used by the Pennsylvania courts should be adopted, under which a claim that could have been presented in an earlier petition will be considered on its merits “if the petitioner shows either factual innocence or procedural unfairness of such gravity that ‘no civilized society’ can tolerate it.”