Republic of Paraguay v. Allen
| Citation | 134 F.3d 622 |
| Decision Date | 22 January 1998 |
| Docket Number | No. 96-2770,96-2770 |
| Parties | The REPUBLIC OF PARAGUAY; Jorge J. Prieto, Ambassador of the Republic of Paraguay to the United States; Jose Antonio Dos Santos, Consul General of the Republic of Paraguay to the United States, Plaintiffs-Appellants, v. George F. ALLEN, Governor of the Commonwealth of Virginia; Richard Cullen, Attorney General for the Commonwealth of Virginia; David A. Garraghty, Warden, Greensville Correctional Facility, Jarratt, Virginia; Samuel V. Pruett, Warden, Mecklenburg Correctional Facility, Boydton, Virginia; Paul F. Sheridan, Judge for the Circuit Court of Arlington County, Virginia; Benjamin N.A. Kendrick, Judge for the Circuit Court of Arlington County; William Newman, Jr., Judge for the Circuit Court of Arlington County; William L. Winston, Honorable, Judge for the Circuit Court of Arlington County; Richard E. Trodden, Commonwealth's Attorney for the County of Arlington; Robert A. Dreischer, Acting Chief of Police of Arlington County; Ronald J. Angeline, Director of Corrections for the Commonwealth of Virginia, Defendants-Appellees, Union Internationale Des Avocets; United States of America; Frederick M. Abbott; David J. Bederman; Richard B. Bilder; David D. Caron; Anthony D'Amato; Lori Fisler Damrosch; William Dodge; Martha A. Field; Joan M. Fitzpatrick; Egon Guttman; Louis Henkin; Harold Hongju Koh; Burt Lockwood; Stefan A. Riesenfeld; Oscar Schachter; Herman Schwartz; Anne-Marie Slaughter; Ralph Gustav Steinhardt; David Weissbrodt, Amici Curiae. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
ARGUED: Donald Francis Donovan, Debevoise & Plimpton, New York City, for Appellants. Donald Richard Curry, Senior Assistant Attorney General, Office of the Attorney General, Richmond, VA, for Appellees. Douglas Neal Letter, Appellate Litigation Counsel, Civil Division, United States Department of Justice, Washington, DC, for Amici Curiae. ON BRIEF: Barton Legum, Michael M. Ostrove, Alexander A. Yanos, Debevoise & Plimpton, New York City; Loren Kieve, Debevoise & Plimpton, Washington, DC; Rodney A. Smolla, Linda A. Malone, Marshall-Wythe School of Law, College of William and Mary, Williamsburg, VA; Leslie M. Kelleher, T.C. Williams School of Law, University of Richmond, Richmond, VA, for Appellants. James S. Gilmore, III, Attorney General of Virginia, Office of the Attorney General, Richmond, VA; Ara L. Tramblian, Deputy County Attorney, Office of the County Attorney, Arlington, VA, for Appellees. Frank W. Hunger, Assistant Attorney General, Helen F. Fahey, United States Attorney, Civil Division, United States Department of Justice, Washington, DC, for Amicus Curiae United States. John Cary Sims, Sacramento, CA; Steven A. Hammond, Hughes, Hubbard & Reed, L.L.P., New York City, for Amicus Curiae Union Internationale. David J. Bederman, Atlanta, GA, for Amici Curiae Law Professors.
Before WIDENER and MURNAGHAN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
Affirmed by published opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge WIDENER and Judge MURNAGHAN joined.
The Republic of Paraguay and its Ambassador and Consul General to the United States appeal from the district court's dismissal of their action seeking declaratory and injunctive relief against the Governor and other officials of the Commonwealth of Virginia (hereinafter "the Commonwealth" or "Commonwealth Officials"). Paraguay sought a declaration of violation by the Commonwealth of treaties between Paraguay and the United States, the vacatur of a capital conviction and death sentence imposed by the Commonwealth on a Paraguayan national in alleged violation of the treaties, and an injunction against further violations. The district court determined that it did not have subject matter jurisdiction over the case and dismissed it pursuant to Fed.R.Civ.P. 12(b)(1). We affirm.
Angel Francisco Breard was arrested on August 17, 1992, by the Arlington, Virginia police on suspicion of the murder of Ruth Dickie, who was killed in February 1992. Though Breard is a citizen of the Republic of Paraguay, the Arlington and Virginia authorities did not advise him of any right to contact the Paraguayan consulate to consult with it throughout his detention and trial. The Circuit Court of Arlington County did, however, appoint two attorneys to represent Breard. On June 24, 1993, after a four-day trial, a jury convicted Breard of capital murder and attempted rape, and fixed punishment for the rape at ten years' imprisonment and a fine of $100,000. After a separate sentencing proceeding, the jury recommended that Breard be sentenced to death for the murder, and after an additional hearing on September 9, 1993, the state court entered a final judgment imposing the death penalty. The Virginia Supreme Court then affirmed Breard's conviction and sentence on direct review, Breard v. Commonwealth, 248 Va. 68, 445 S.E.2d 670 (1994), and the United States Supreme Court denied certiorari. See 513 U.S. 971, 115 S.Ct. 442, 130 L.Ed.2d 353 (1994). At no point in his direct appeal did Breard allege that the Commonwealth had violated any treaty provision during the period of his detention and trial.
The circuit court then appointed new counsel to represent Breard in his state habeas corpus proceedings. In his state court petition Breard again failed to allege violations of any treaty. The circuit court dismissed Breard's petition in July 1995, and the Virginia Supreme Court refused his petition for appeal in January 1996. At some point after this date, Paraguay's ambassador and general consul became aware of Breard's conviction and sentence and sought to confer with Breard in accordance with international treaties providing that right. The Commonwealth acquiesced, and Paraguay's officers have been given free access to Breard since that time.
In August 1996, Breard filed a federal habeas corpus petition in the United States District Court for the Eastern District of Virginia in which he claimed that the Commonwealth had violated his rights under Article 36(1) of the Vienna Convention on Consular Relations ("Vienna Convention"), to which both Paraguay and the United States are signatories. That section provides:
(b) [I]f 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) [C]onsular 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.
Vienna Convention on Consular Relations, Apr. 24, 1963, Art. 36(1), 21 U.S.T. 77, 596 U.N.T.S. 261.
The district court dismissed Breard's petition on the ground of procedural default in failing to raise the treaty-violation claim at any point in the state court proceedings. See Breard v. Netherland, 949 F.Supp. 1255, 1263 (E.D.Va.1996) (citing Gray v. Netherland, 518 U.S. 152, ---- - ----, 116 S.Ct. 2074, 2080-81, 135 L.Ed.2d 457 (1996)). Breard's appeal to this court from the dismissal of his petition is pending as of this writing. 1
In September, 1996, the Republic of Paraguay, Jorge J. Prieto, its Ambassador to the United States, and Jose Antonio Dos Santos, its Consul General to the United States, (collectively "Paraguay") brought this action against the named Commonwealth officials alleging that Paraguay's separate rights under the earlier-quoted provisions of the Vienna Convention and those of another treaty requiring comparable notification, had been violated by the Commonwealth's failure to inform Breard of his rights under the treaties and to inform the Paraguayan consulate of Breard's arrest, conviction and sentence. 2 The action included a joint claim based directly upon Paraguay's treaty rights and, for Dos Santos, a parallel claim under 42 U.S.C. § 1983 alleging denial of his rights under federal treaty law by the conduct of Commonwealth officials taken under color of state law.
In its claims, Paraguay sought as relief a declaration of treaty violation, a vacatur of Breard's conviction and sentence, and an injunction against further violations of the treaty provisions. The Commonwealth moved to dismiss the action under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) on standing, subject matter jurisdiction, and merits grounds. The district court first determined that Paraguay and its officials had standing to bring their claims under the treaties, emphasizing that Paraguay was asserting its own rights and not those of Breard. Republic of Paraguay v. Allen, 949 F.Supp. 1269, 1274 (E.D.Va.1996). The court also concluded that Dos Santos had standing to maintain his parallel § 1983 claim because he was a "person" within the meaning of the Act. Id. at 1275 (citing United States v. Wong Kim Ark, 169 U.S. 649, 678-81, 18 S.Ct. 456, 468-69, 42 L.Ed. 890 (1898)).
The court ultimately decided, however, that it did not have subject matter jurisdiction because the claimants were not alleging a "continuing violation of federal law" and therefore could not bring their claims within the exception to Eleventh Amendment immunity established in Ex parte Young, 209...
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